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D.P.P. v. Devlin [1998] IEHC 139 (2nd September, 1998)
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[1998] IEHC 139
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D.P.P. v. Devlin [1998] IEHC 139 (2nd September, 1998)
THE
HIGH COURT
1997
No.
997
SS
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER
OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
(AT
THE SUIT OF GARDA PAT DILLON)
APPELLANT
AND
PATRICK
DEVLIN
RESPONDENT
JUDGMENT
delivered by Mr Justice Declan Budd on the 2nd day of September 1998
1. This
matter comes before this Court by way of a Case Stated by Judge James
O'Sullivan sitting at Borrisokane District Court, pursuant to Section 2 of the
Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts
(Supplemental Provisions) Act, 1961 on the application in writing of the
Appellant for the opinion of the High Court as to whether the determination of
the above proceedings was erroneous in point of law. I propose to quote the
Case Stated in full so that it may be clear as to what the facts are and the
points in issue and in particular what precise findings were made or not made
by the learned Judge. The Case Stated reads as follows:-
"1. At
a sitting of the District Court at Borrisokane District Court on the 12th day
of December 1996 the Respondent appeared before me to answer the accusation of
the Director of Public Prosecutions at the suit of Garda Pat Dillon, in the
summons served on the Respondent, that the said Patrick Devlin, on the 29th day
of March 1996, at Killeen, Borrisokane, County Tipperary in the Court Area and
District aforesaid, drove a mechanically propelled vehicle, registered number
89 TN 773, 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 blood exceeded a concentration of 80 milligrammes of alcohol per
100 millilitres of blood contrary to Section 49(2) and 6(a) of the Road Traffic
Act 1961, as inserted by Section 10 of the Road Traffic Act 1994, as amended by
Section 2 of the Road Traffic Act 1995.
2. The
facts proved or admitted were as follows:-
(a) Garda
Pat Dillon, a member of an Garda Siochana, stationed at Borrisokane, County
Tipperary, gave evidence that on the 29th day of March 1996 at 1.55 a.m. he was
driving the Borrisokane patrol car at Killeen, Borrisokane, County Tipperary,
travelling from Portumna towards Borrisokane, when he saw the lights of a car
coming towards him, with full lights. As it drew closer the lights still did
not dim and it veered on to his side of the road. Garda Dillon had to swing
the patrol car up onto the grass ditch to avoid a collision.
(b) Garda
Dillon looked in the rear view mirror and the car continued on the wrong side
of the road and veered across the road on a few occasions. He followed this
car registered number 89 TN 773 and he stopped same at Killeen, Borrisokane,
County Tipperary at 1.57 a.m. on the 29th of March 1996.
(c) When
Garda Dillon approached the driver's door he kept looking ahead and did not
look at Garda Dillon until Garda Dillon opened the door. Garda Dillon made the
driver aware of his driving. He did not respond but just sat looking straight
ahead.
(d) The
driver gave his name as Patrick Devlin of Ballygraigue Road, Nenagh, County
Tipperary (the Respondent herein).
(e) Garda
Dillon got a strong smell of intoxicating liquor from the Respondent's breath.
Garda Dillon formed the opinion that the Respondent had consumed intoxicating
liquor. Garda Dillon asked the Respondent where he was going and he stated in
a slurred voice that he was going to Nenagh. When Garda Dillon asked him if he
was sure where he was going, the Respondent stated that he had just gone
through Toomevara and was now heading into Nenagh. His eyes were bleary and
bloodshot and he was very unsteady on his feet.
(f) Garda
Dillon formed the opinion that the Respondent had consumed an intoxicant to
such an extent that he was incapable of having proper control of a mechanically
propelled vehicle in a public place. Garda Dillon told the Respondent that he
was arresting him under Section 49(8) of the Road Traffic Act 1961/95 for
drunken driving. Garda Dillon then arrested the Respondent under Section 49
(8) of the Road Traffic Act 1961/95 at 2 a.m. at Killeen, Borrisokane, County
Tipperary and took him to Borrisokane Garda Station, arriving there at 2.10 a.m.
(g) Garda
Dillon handed the Respondent a notice of rights but he did not respond. Garda
Dillon stated that he complied with the necessary provisions of the Criminal
Justice Act 1984 (Treatment of Persons in Custody) Regulations 1987.
(h) Dr.
Lyons arrived at the station at 2.20 a.m. Garda Dillon introduced Dr. Lyons to
the Respondent. In the presence of the Doctor he advised the Respondent as
follows:-
'This
is a designated Doctor called in on behalf of the Gardai to examine you. I
require you under Section 13(1)(b) of the Road Traffic Act 1994 to permit the
Doctor to take from you a sample of your blood or, at your option to provide
for the Doctor a specimen of your urine. Refusal or failure to do so is an
offence punishable by a fine not exceeding £1,000 or imprisonment for a
term not exceeding 6 months, or both, and also disqualification from driving'.
The
Respondent opted to provide blood. Garda Dillon handed Doctor Lyons a sealed
box which was issued by the Medical Bureau. The Doctor opened the box and took
a sample of blood at 2.29 a.m. with a syringe which he had taken from the box.
The provisions of Section 18 of the Road Traffic Act 1994 were complied with.
(j) The
Respondent stated to Garda Dillon "I hope you know what you are doing, you
better make sure you're doing things right for your sake". The Respondent
exercised his right to retain one of the sealed containers.
(k) On
the 29th of March 1996 the remaining sample and the Doctor's Certificate in
duplicate were sent to the Medical Bureau of Road Safety by registered post.
Garda Dillon subsequently received, on the 9th day of April 1996 a Certificate
and one copy of the Doctor's Certificate. The Certificate from the Bureau
indicated a concentration of 203 milligrammes of alcohol per 100 millilitres of
blood.
(l) Under
cross-examination by Mr. Dully, Counsel for the Respondent, Garda Dillon stated
that he did not read the Notice of Rights to the Respondent but that he did
hand it to the Respondent, who did not respond and who did not sign the Custody
Record in receipt thereof. It was put to Garda Dillon that it was his
obligation, as member in charge, to read to the Respondent the said Notice of
Rights. Garda Dillon replied that he did not see any point in telling the
Respondent, as he would not understand, due to his condition. It was put by
Mr. Dully, in cross-examination, that there was an inconsistency in Garda
Dillon's evidence as regards the Respondent's capacity to understand what he
had been told by Garda Dillon due to his alleged intoxication. Garda Dillon
had accepted when asked by Mr. Dully that the Respondent had understood the
requirement made by Garda Dillon to provide a sample of blood or, at his option
a specimen of his urine and the consequences of a failure or refusal on the
Respondent's behalf to comply with such a requirement, yet a short time
previously Garda Dillon had apparently chosen not to orally explain to the
Respondent in ordinary language the notice of his rights because he would not
understand due to his allegedly intoxicated condition. Garda Dillon did not
offer any explanation for this inconsistency.
(m) Garda
Dillon was also cross-examined on his knowledge of the issue of instructions in
writing by the Superintendent, as to who was to be the member in charge of the
station, in accordance with Regulation 4 of the Custody Regulations. Garda
Dillon stated that he was familiar with Section 4 but could not say when the
instructions were issued or when they were last read by him.
(n) It
was put to Garda Dillon that there was conflict of interest in relation to the
roles he performed i.e. arresting, investigating and carrying out the duties of
member in charge. Garda Dillon replied that his obligation would be the same
in regard to the interests of the person in custody.
(o) Garda
Dillon was also cross-examined on whether another member of an Garda Siochana
would have been available, if sought, to perform the role of member in charge.
In this regard Garda Dillon agreed that it might have been practicable to get
another Garda but that he did not, as this would delay the procedure, thereby
infringing the Respondent's rights.
3. Counsel
for the Respondent submitted that the charge ought to be dismissed on the
following grounds:-
(a) That
Garda Dillon failed to orally inform the Respondent of his rights, in
accordance with Regulation 8(1) of the Custody Regulations.
(b) That
Garda Dillon, who was the arresting and investigating member, also assumed the
position of member in charge of the station for the purpose of the Custody
Regulations, thereby creating a conflict between his various roles. The sample
obtained by Garda Dillon in the course of his investigation of the alleged
offence had been obtained as a direct result of a breach of the Custody
Regulations and that there was a clear causal connection between the breach and
the obtaining of evidence against the Respondent.
(c) That
another member of an Garda Siochana could, in the circumstances with a
reasonable degree of practicality, and should have been sought to perform the
role of member in charge or alternatively carry out the investigative function
in respect of the Respondent carried out by Garda Dillon. It appeared from the
very honest evidence of Garda Dillon that other Gardai were available if their
assistance had been requested. I deemed from his evidence that it would have
been practicable to have called them in. I consider the accused was deprived
of those other Gardai's involvement in contributing to the accused's rights
whilst in the station.
4. Superintendent
K. Ludlow, who appeared on behalf of the Appellant, replied as follows:-
(a) Superintendent
Ludlow referred to the case of
D.P.P.
-v- Eric Spratt
,
unreported judgment, delivered by Mr. Justice O'Hanlon on the 8th of February
1995. He submitted that the failure of Garda Dillon to read over the Notice of
Rights did not invalidate the prosecution or deny the Respondent his rights
under the regulations. He further submitted that Garda Dillon was carrying
out a statutory function/process under Section 13(1)(b) of the Road Traffic Act
1994 and that there was no discretionary powers or procedures available to him.
(b) Superintendent
Ludlow submitted that the offence for which the Respondent was in custody could
not be compared with more serious criminal offences where Garda Dillon, as
member in charge, would have power to decide on detention, questioning etc.
which could lead to a conflict of interest. He submitted that the Respondent
did not have any option except to comply with the statutory requirement made by
Garda Dillon and was therefore not prejudiced. Superintendent Ludlow further
stated that it was the duty of all members of An Garda Siochana to protect the
rights of the individual and not simply the duty of the member in charge.
(c) Superintendent
Ludlow submitted that it was not practicable to get a Garda from another
station to perform the role of member in charge and that Regulation 4(3) of the
Custody Regulations referred to the practicality aspect. He stated that Nenagh
was the nearest station where a member may have been available and this would
entail a round trip of 20 miles.
5. I
held that there had been breaches of the Custody Regulations which left me with
the discretion to exclude evidence obtained thereafter. I exercised my
discretion to exclude evidence as to the concentration of the sample provided
by the Respondent and dismissed the charge accordingly.
6. The
opinion of the High Court is sought as to whether I was correct in law in so
dismissing the said charge under Section 49 of the Road Traffic Act 1961 as
amended and, in particular,
(a) Whether
I am correct in law in holding that the failure to orally inform the Respondent
in ordinary language or at all in accordance with Regulation 8 of the Custody
Regulations together with my findings that Garda Dillon, by his action, had
breached the provisions of Regulation 4(3) of the Custody Regulations in
respect of his treatment of the Respondent as a person in Custody entitled me
to dismiss the charge.
(b) Whether
I was correct in holding that Garda Dillon ought to have called on other
members to assist in the three roles of duty i.e. arresting, investigating and
member in charge".
2. The
salient features would appear to be that the Respondent was summonsed to appear
before District Judge O'Sullivan in relation to the charge of drunk driving,
contrary to Section 49(2) and (6)(a) of the Road Traffic Act, 1961 as inserted
by Section 10 of the Road Traffic Act, 1994, as amended by Section 2 of the
Road Traffic Act, 1995. Evidence was given by the prosecuting Garda, Garda
Dillon, in relation to the Respondent's driving and general demeanour which
culminated in the formation of an opinion by the Garda that the Respondent had
consumed an intoxicant to such an extent that he was incapable of having
proper control of a mechanically propelled vehicle in a public place. Garda
Dillon then arrested the Respondent under the provisions of Section 49(8) of
the Road Traffic Act, 1961/1995 for drunken driving.
3. Garda
Dillon conveyed the Respondent to Borrisokane Garda Station arriving there at
2.10 a.m. Apparently on arrival at Borrisokane Garda Station, Garda Dillon
assumed the functions and duties of a member in charge as regards the
Respondent pursuant to the Criminal Justice Act, 1984 (treatment of persons in
custody) Regulations, 1987. Garda Dillon handed the Respondent a Notice of
Rights but he did not respond. Garda Dillon stated in his direct evidence
that he complied with the necessary provisions of the Criminal Justice Act,
1984 (Treatment of Persons in Custody) Regulations, 1987. Under
cross-examination by Counsel for the Respondent, Garda Dillon stated that he
did not read the Notice of Rights to the Respondent but that he did hand it to
the Respondent who did not respond and who did not sign the custody record in
respect of the receipt thereof. When it was put to Garda Dillon that it was
his obligation, as member in charge, to read the Notice of Rights to the
Respondent, Garda Dillon replied that he did not see any point in explaining
the rights to the Respondent because the Respondent would not have understood
due to his intoxicated condition. It was also suggested to Garda Dillon that
there was an inconsistency in his evidence as regards the Respondent's capacity
to understand in that he, Garda Dillon, had accepted when asked by Counsel that
the Respondent had understood the requirement made by the Garda to provide a
sample of blood or, at his option, a specimen of his urine and had understood
the consequences of a failure or refusal on his part to comply with such a
requirement. It was pointed out to Garda Dillon that a short time previously
he had chosen not to inform the Respondent verbally in ordinary language of his
rights as a person in custody under the Custody Regulations because the
Respondent could not understand such rights due to his condition. No
explanation was given for this inconsistency.
4. Secondly,
it was suggested to Garda Dillon that there was a conflict of interest in
relation to the roles which he had performed in that he had acted as arresting
and investigating Garda and also had carried out the duties of the member in
charge. Garda Dillon responded that his obligations would be the same in
regard to the interests of the person in custody. Garda Dillon also agreed
that it might have been practicable to get another Garda to act as member in
charge but he did not do this as this would have delayed the procedure, thereby
infringing the Respondent's rights. I should interject that it is clear from
the general tenor of the Criminal Justice Act, 1984 (Treatment of Persons in
Custody in Garda Siochana Stations) Regulations, 1987 (S.I. No. 119 of 1987)
that there should be no unnecessary delay in dealing with persons in custody
(see Regulation 3); and Regulation 4(3) states that
"as
far as practicable, the member in charge shall not be a member who was involved
in the arrest of a person for the offence in respect of which he is in custody
in the station or in the investigation of that offence".
Thus the need not to have unnecessary delay in dealing with a person in
custody and the practicability of securing the attendance of another Garda at
Borrisokane Garda Station at 2.10 a.m. on the 29th March, 1996 are relevant to
the situation.
5. At
the close of the prosecution case, Counsel for the Respondent sought a
dismissal of the charge on grounds which can be summarised as follows:-
(a) Garda
Dillon failed to inform the Respondent verbally of his rights in
accordance
with the Custody Regulations .
(b) As
Garda Dillon was the arresting and investigating member, he ought not to
have
assumed the position of member in charge under the Custody
Regulations,
as this created a conflict for him and in those circumstances he
ought
to have contacted another member of An Garda Siochana to act as
member
in charge.
6. Superintendent
Ludlow, appearing on behalf of the Appellant, submitted that the failure of
Garda Dillon to read the Notice of Rights did not invalidate the prosecution
or deny the Respondent his rights under the Regulations. He further submitted
that the offence for which the Respondent was in custody was not comparable to
criminal offences where the member in charge would have decisions to make with
regard to detention and questioning so that a conflict of interest between his
duties as investigating Garda and member in charge might arise. In this
particular type of case, the Respondent did not have any option except to
comply with the requirement made by Garda Dillon under the stipulations in the
Road Traffic Act, and accordingly there was no question of unfair exercise of
discretion by reason of conflicting roles.
7. Thirdly,
Superintendent Ludlow stressed that Regulation 4 in respect of the "member in
charge" stipulates that as far as practicable, the member in charge shall not
be a member who is involved in the arrest of a person for the offence in
respect of which he is in custody in the station or in the investigation of
that offence. The Superintendent stressed that the phrase
"as
far as practicable"
was relevant and it was common case that the nearest available Garda Station
was in Nenagh which was about ten miles away, entailing a round trip of 20
miles in the small hours of the morning.
8. On
the basis of these circumstances the learned District Judge held that there had
been breaches of the Custody Regulations which left him with the discretion to
exclude evidence obtained thereafter. He exercised his discretion to exclude
evidence as to the concentration of the sample provided by the Respondent and
dismissed the charge.
ISSUES
9. The
opinion of the High Court is sought as to the following two matters:-
(1)
Whether
the learned Judge was correct in law in holding that the failure to
inform
the Respondent orally, in ordinary language or at all, in accordance
with
Regulation 8 of the Custody Regulations, together with his findings that
Garda
Dillon by his actions, had breached the provisions of Regulation 4(3) of
the
Custody Regulations in respect of his treatment of the Respondent as a
person
in custody by both acting in the role of investigating Garda and
member
in charge entitled him to dismiss the charge, and
(2)
whether
he was correct in holding Garda Dillon ought to have called on other
members
to assist in the three roles of duty i.e., arresting , investigating and as
member
in charge.
NON-COMPLIANCE
WITH REGULATION 8 AND THE CONSEQUENCES THEREOF
10. When
additional powers of detention were given to the Gardaí under the
Criminal Justice Act, 1984 these were introduced subject to additional
safeguards for those who are being detained and denied their liberty. Some of
these safeguards were embodied in the Criminal Justice Act, 1984 (Treatment of
Persons in Custody in Garda Siochana Stations) Regulations, 1987 and relevant
to this first issue is Regulation 8 which provides:-
"(1)
The member in charge shall without delay inform an arrested person or
cause him to be informed-
(a) in
ordinary language of the offence or other matter in respect of which he has
been arrested,
(b) that
he is entitled to consult a solicitor,
and
(c)
(i)
in
the case of a person not below the age of seventeen years, that he is entitled
to have notification of his being in custody in the station concerned sent to
another person reasonably named by him, or
(ii)
in
the case of a person under the age of seventeen years, that a parent or
guardian (or, if he is married, his spouse) is being given the information
required by Regulation 9(1)(a)(i) and is being requested to attend at the
station without delay.
The
information shall be given orally. The member in charge shall also
explain or cause to be explained to the arrested person that, if he does not
wish
to exercise a right specified in sub-paragraph (b) or (c)(i) immediately,
he
will not be precluded thereby from doing so later.
(2) The member in charge shall without delay give the arrested person or
cause
him to be given a notice containing the information specified in
sub-paragraphs (b) and (c) of paragraph (1) and such other information
as the Commissioner of An Garda Siochana, with the approval of the
Minister
for Justice, may from time to time direct.
(3) Paragraphs (1) and (2) apply only in relation to the member in charge of
the
station to which an arrested person is taken on arrest or in which he
is
arrested.
(4) The time of the giving of the information specified in paragraph (1) and
the notice specified in paragraph (2) shall be recorded. The member in
charge shall ask the arrested person or cause him to be asked to sign the
custody record in acknowledgement of receipt of
the notice. If he refuses
to sign, the refusal shall be recorded".
11.
There was ample evidence on the basis of which the learned Judge found that the
Garda, in his role as member in charge, was in breach of Regulation 8(1) in
that he failed to inform the Respondent orally of his right to consult a
solicitor and to have notification of his being in custody sent to another
person reasonably named by him. It is conceded by the Appellant that the fact
that Garda Dillon was of the view that there was no point in imparting this
information to the Respondent due to his condition does not absolve him from
this breach. However, the Appellant's contention is that non-compliance with
the Custody Regulations does not of itself entitle the learned Judge to
dismiss a charge of this nature. The Appellant cites Section 7(3) of the
Criminal Justice Act, 1984 and the case law thereon for the proposition that
paragraph 5 of the Case Stated is an explicitly incorrect statement of the law
to be applied in the circumstances.
12. The
Criminal Justice Act, 1984 is the basis for the above regulations. Section 7
deals with regulations regarding treatment of persons in custody and Section
7(3) provides:-
"A
failure on the part of any member of the Garda Siochana to observe any
provision of the Regulations shall not of itself render that person liable to
any criminal or civil proceedings or of itself affect the lawfulness of the
custody of the detained person or the admissibility in evidence of any
statement made by him".
13.
This provision in the Custody Regulations was considered by O'Hanlon J. in
DPP
-v Spratt
- a consultative Case Stated reported at [1995] 1 IR 585 which was cited before
the learned District Judge.
Spratt's
case concerned a charge of refusing to comply with the requirement of the Garda
Doctor in relation to the provision of a sample of blood or urine following
upon an arrest under Section 49 of the Road Traffic Act, 1961 as amended. In
that case, it was not established in evidence before the District Court Judge
that the provisions of Articles 8 and 9 of the Regulations had been complied
with, although there was no affirmative evidence which tended to suggest that
they had not been complied with. While this is undoubtedly a distinguishing
feature from the present case, nevertheless the views expressed by O'Hanlon J.
are of assistance. First, he held that the Regulations made under Section 7 of
the 1984 Act, should be regarded as applicable in relation to persons arrested
under Section 49, subsection (6) of the Road Traffic Act, 1961 as amended. He
went on to consider whether non-compliance with the Regulations and
particularly Article 8 thereof rendered the custody of the accused unlawful
notwithstanding the provisions of Section 7, subsection (3) of the Criminal
Justice Act, 1984 which is set out above. O'Hanlon J. at page 591 said :-
"The
phrase 'of itself' is obviously an important one in the construction of the
statutory provisions, and I interpret the subsection as meaning that
non-observance of the Regulations is not to bring about automatically the
exclusion
from evidence of all that was done and said while the accused person was in
custody. It appears to be left to the court of trial to adjudicate in every
case as to the impact the non-compliance with the regulations should have on
the case for the prosecution."
14. O'Hanlon
J. went on to consider the decision of Blayney J. in
Walsh
-v- District Justice O'Buachalla
[1991] 1 IR 56 which concerned a charge brought under Section 49 of
the
Road Traffic Act, 1961 as amended. The applicant sought to have his conviction
quashed in reliance on evidence that just before the relevant blood specimen
was taken in the station, he had asked to see a solicitor but compliance with
his request was deferred until after the specimen had been taken. He had been
given notice of his right to consult his solicitor and had also been given
access to a telephone for this purpose some forty minutes before the arrival of
the Doctor to take the blood specimen, but did not choose to avail of his
rights in the period which intervened before the arrival of the Doctor. It was
held by Blayney J., refusing his application for Judicial Review:-
(1) That
evidence obtained following a deliberate and conscious breach of an
accused
person's constitutional rights must be excluded only if it had been
obtained
as a result of that breach. In the absence of a causative link between
the
breach and the obtaining of the evidence, such evidence was admissible.
(2) That
assuming the refusal of the applicant's request for access to a solicitor
was
in breach of his constitutional rights, the certificate was nonetheless
admissible
in evidence, since the specimen had been obtained after, but not as
a
result of that breach.
15. At
page 592 O'Hanlon J. commented:-
"I
think the correct approach in the present case is to pose the same question
which
Mr.
Justice Blayney asked of himself in
Walsh's
case. If a breach of the constitutional rights of the accused person took
place, as alleged, in what manner was he prejudiced thereby? Was any
information obtained which might not have been otherwise obtained?
It
is easy to conceive a situation where an accused person in custody is not
informed
of his right of access to a solicitor, and does not seek legal advice in
consequence,
and proceeds to make an incriminating statement when a legal
adviser
might have counselled silence. In this set of circumstances it can be
envisaged
that the decision of the trial judge might be to exclude the evidence
so
obtained.
In
the present case, however, as in
Walsh's
case,
an accused person was in the Garda station awaiting the arrival of the
registered medical practition
er
who
was to take a sample of blood or urine, which the accused person was obliged by
law to provide for him in accordance with the relevant statutory provisions.
Access to a solicitor or advice from a solicitor could not avert this fate, and
no further evidence was then required for the purpose of the prosecution save
evidence of the circumstances of the arrest, the obtaining of the sample and
the formal, technical evidence of what was disclosed by the sample taken.
In
the words of Blayney J.:-
"It
was submitted on behalf of the applicant that if he had had access to a
solicitor he could have been advised by him. But what advice could a solicitor
have given him? He would certainly not have advised him to commit an offence by
refusing to give one or other of the specimens. All he could have done was to
confirm that the applicant was required by law to provide a specimen of blood
or urine. No advice could have prevented the specimen being obtained, and,
accordingly, the applicant's not having had access to a solicitor in no way
affected its being obtained" (page 60).
16. Counsel
for the Appellant submits that applying these principles to the present case it
is clear that the failure on the part of the Garda to comply with the
provisions of Regulation 8 did not, of itself, result in the specimen being
taken. The Respondent was under a duty to provide the specimen and the oral
notification to him of his right to have a solicitor or another person notified
of his presence in the Garda Station would not have affected this obligation.
In these circumstances it is difficult to envisage how the Respondent was
prejudiced by the failure to inform him verbally of his rights. The anxiety of
the District Judge at the breach of the Regulations is understandable but the
wording of the Case Stated, and in particular paragraph 5 thereof, does not
indicate in what way or whether the Respondent was in fact prejudiced by the
suggested breach of the Regulations.
17. Counsel
also pointed out that the Respondent was handed a Notice of Rights which
included the two rights which were required to be brought to his attention by
way of oral information. Perhaps the Respondent may have been more receptive
to the written than to the verbal alerting to his rights but this point is not
influential.
18. Counsel
on behalf of the Respondent agreed that on foot of the decision in
DPP
-v- Spratt
,
the
trial Judge had a discretion in each case as to the effect of proven non
compliance with the Regulations by the member in charge and as to the effect
which this should have on the admissibility of evidence obtained under such a
breach whilst the accused person remained in detention. He stressed that the
trial Judge had the opportunity of hearing the Garda witness and of observing
his demeanour and responses in cross-examination and thus was in a position to
decide whether the interests of justice required him to exclude or admit
evidence obtained after a breach of the Custody Regulations had been
established. He also submitted that the trial Judge must be entitled to
consider the particular nature of the breach of the Custody Regulations and the
explanation offered for this by the member in charge. All this is correct but,
on the basis of the impression made on him by the evidence, the District Judge
must go on to apply the law as set out in Section 7 and the cases cited by
adjudicating as to what impact the non-compliance with the Regulations has had
on the case for the prosecution. I should add that there is no suggestion in
the Case Stated that the District Judge formed the view that he was dealing
with a conscious and deliberate violation of the Respondent's rights or of the
Custody Regulations or that reprehensible or oppressive behaviour on the part
of the Garda tainted the entire prosecution case. Accordingly, on this issue,
in view of the words of the statute and the statements of O'Hanlon J. and
Blayney J. in respect of the case law, it seems to me that there was no actual
adjudication on the impact of the breach of the regulations on the
admissibility of the evidence subsequently obtained against the Accused and
that, accordingly, the learned District Judge was wrong in dismissing the
charge on this basis. I should add that it would be for the District Judge to
make such findings as are appropriate in the light of the guidelines and quoted
statements as to the law and then to come to his conclusion in the light of his
findings made in accordance with law.
SHOULD
THE ARRESTING/INVESTIGATING GARDA HAVE ALSO ACTED AS MEMBER IN CHARGE?
19. The
question suggests three separate roles of arresting, investigating Garda and
member in charge. It is quite normal for a Garda who investigates a
drunk-driving offence to effect an arrest under Section 49(8) of the relevant
Act. The distinction in role would appear to be between the role of the
investigating and arresting Officer and the role of member in charge. I infer
from the Case Stated that there was no other member of the Garda Siochana
available in Borrisokane Garda Station and that contacting a Garda in Nenagh
Garda Station, some ten miles away, and requesting this Garda to come to
Borrisokane Garda Station to carry out the role of member in charge would have
entailed a delay involving further deprivation of liberty on the part of the
Respondent. While the wording of the Statute and Regulations are of
importance, nevertheless the Court can take into consideration the situation in
rural Ireland where there are still Garda Stations with one or two
Gardaí. The local Garda Station is one of the great institutions of the
Irish countryside and is a strong influence in preventing rural crime and
breaches of the peace. A local Garda knows and is known by the community and
by advice and by presence in the village and the surrounding countryside
influences support for the rule of law.
20. The
relevant regulation is Regulation 4 of the Custody Regulations which provides:-
"(3)
As
far as practicable, the member in charge shall not be a member who was involved
in the arrest of a person for the offence in respect of which he is in custody
in the station or in the investigation of that offence"
.
21. Counsel
for the Appellant stresses the phrase "
as
far as practicable
"
and says that this indicates that a Garda is not prohibited from acting as both
arresting and investigating member and as member in charge but should not do so
if it is practicable to have another member perform the duties of the member in
charge. Regulation 8 requires that the member in charge shall, without delay,
give certain information and carry out other duties in relation to the person
detained. Counsel for the Appellant submits that it would have been
inappropriate and impracticable in view of the time constraints for Garda
Dillon to delay the process in order to contact another Garda who would have
been on duty in Nenagh, some ten miles away and presumably with other duties to
attend to in that town. Counsel for the Respondent submits that Regulation
4(3) sets out an important demarcation between two distinct roles so as to
ensure that the member of the Gardaí acting as member in charge is not
compromised in his role as guarantor of the rights of accused persons in
custody by active participation in the investigation. He further submits that
it was practicable to obtain another Garda to act as member in charge and that
there was a failure to obtain the assistance of another Garda to act as member
in charge.
The
phrase "
as
far as practicable
"
makes it clear that there are circumstances in which the investigating Garda
can also act as member in charge. The tenor of the factual findings in the
Case Stated are to the effect that it would have been difficult and probably a
considerable source of delay to Garda Dillon to have tried to obtain the
presence of a colleague from Nenagh. Other Regulations require steps to be
taken in respect of the detained person without delay. While it is clearly
arguable that Garda Dillon ought to have contacted another member of the Garda
Siochana with a request to come to Borrisokane to act as member in charge,
nevertheless his failure to do so would not entitle the Respondent to a
dismissal of the charge. Similar principles apply as on the first issue
decided in view of the limited role of the member in charge in this type of
drunken driving case.
22.
Consideration should have to be given to the effect of Garda Dillon assuming
the role of member in charge in the matter as well as being the investigating
Garda and as to whether the Respondent was in any way prejudiced thereby.
There was no adjudication by the District Judge as to whether any prejudice
stemmed from this assumption of both roles. Paragraph 5 indicates a finding
that there was a breach of the Regulations but does not go on to indicate any
findings with regard to prejudice caused thereby nor does the need for
expedition of processing of a person in detention seem to have been taken into
account in considering the practicability of obtaining another Garda to act as
member in charge in the small hours of the morning in Borrisokane Garda Station.
23. Counsel
for the Appellant correctly submits that the member in charge has a regulatory
function only and in the case of detention for drunk-driving the member in
charge's role can be distinguished from that of the member in charge where an
arrest is followed by a detention under Section 4 when the member in charge is
required to exercise a separate discretion as to whether the detention is
required. In a prosecution being brought under Section 49 of the Road Traffic
Act, the accused person, having been arrested under that section, is required
to attend at the Garda Station for the purpose of the provision of a specimen,
and it is not up to the member in charge to decide whether or not this
detention is necessary.
24. While
it is clear from paragraph 3 of the Case Stated that Counsel for the Respondent
did submit that the sample obtained by Garda Dillon in the course of his
investigation of the alleged offence had been obtained as a direct result of a
breach of the Custody Regulations and that there was a clear causal connection
between the breach and the obtaining of evidence against the Respondent, there
does not seem to be implicit or explicit statements in the Case Stated which
would indicate that the learned Judge did make findings on and adjudicate about
matters of prejudice on the guidelines suggested by the cases cited.
Accordingly, on the precise wording of the Case Stated before me, in the
absence of further findings with regard to prejudicial matters arising out of
the dual roles of Garda Dillon, the second question should be answered in the
negative. Again, this is a narrow decision on the specific question asked. I
add the proviso that it would be for the learned Judge to make findings on the
evidence in accordance with the statute, the regulations thereunder and the
guidelines in the cases cited.
25. In
the light of these findings I will hear Counsel as to the precise nature of the
Order to be made.
List
of Cases cit ed:
DPP
-v- Spratt
[1995] 1 I.R. 585
Walsh
-v- District Judge O'Buachalla
[1991] 1 I.R. 56
© 1998 Irish High Court