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D.P.P. v. Clark [2001] IEHC 138 (31st May, 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/138.html
Cite as:
[2001] IEHC 138
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D.P.P. v. Clark [2001] IEHC 138 (31st May, 2001)
THE
HIGH COURT
2000
1793 SS
IN
THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857(19 AND 20 VICTORIA
CHAPTER 43) AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS
1961)
BETWEEN
THE
DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR/APPELLANT
AND
CLIVE
CLARK
ACCUSED/RESPONDENT
JUDGMENT
delivered by the Honourable Mr. Justice Johnson on the 31st day of May 2001.
1. This
case arises from a case stated by Judge Maughan of the District Court on the
25th of October, 2000, wherein the question was posed as to whether Judge
Maughan was correct in law, in dismissing the charges brought against the
Defendant under Section 49 of the Road Traffic Act on the ground that he found
that the custody records mis-described the offence in respect of which the
Respondent had been arrested and taken into custody.
2. The
statutory provisions relating to the allegations of the Garda Siochana to
record matters in the custody record are set out in Statutory Instrument No.
119 of 1987, being the Criminal Justice Act, 1984 (Treatment of Persons in
Custody in Garda Stations) Regulations 1987. In that regulation the relevant
paragraph is No. 6 which read as follows:-
6.1
A
record (in these regulations referred to as the custody record) shall be kept in
respect
of each person in custody.
6.2 A
member in charge shall record or cause to be recorded in the custody record as
soon
as
practicable such information as it required to be recorded by these
regulations.
Each
entry in the record should be signed or initialled by the member making it.
6.3 Where
a person in custody is transferred to another station, the member in charge of
the
station from which he is transferred shall send with him the custody record
relating
to him or a copy of it, to the member in charge of that other station.
6.4 Without
prejudice to the responsibility of any other member for the accuracy and
completeness
of any entry which he has made in a custody record, the member in
charge
shall be responsible for the accuracy and completeness of all entries made in
the
custody record while he is the member in charge.
7.1 In
relation to an arrested person a record shall be made of :-
a. The
date, time and place of arrest and the identity of the arresting member (or
other
person effecting arrest),
- The
time of arrival at the station,
- The
nature of the offence or other matter in respect of which he was arrested, and
- Any
relevant particulars relating to his physical or mental condition.
3. The
other portions of paragraph 7 does not apply in this case.
Paragraph
8
subsection 1 states the member in charge shall without delay inform an
arrested person or cause him to be informed in ordinary language of the offence
or other matter in respect of which he has been arrested, and that he is
entitled to consult a Solicitor.
4. The
other matters in that section do not relate to the present case. The facts
were in this case as appears in the case stated:-
- At
approximately 1.05 a.m. on the 11th of January, 2000 one Gerry McEntee of
Plush, Belturbet was sitting in the driving seat of a red carina motor car
registration number 90 MH 1062 at Corporation Lands, Belturbet when he felt a
bump from behind and heard a bang. He got out of his car and saw that the
Respondent who was driving a red corolla motor vehicle registration number 92
CN 110 had collided with the rear of his car.
- At
about 1.08 a.m. on the same date Sergeant James McGuinness a member of the
Garda Siochana attached to the Belturbet Garda station, County Cavan was on
duty at Corporation Lands, Belturbet, a public place in the company of
Detective Garda Fitzgerald and Sergeant Cassidy when he came upon the scene.
He saw the motor vehicle registration number 90 MH 1062 had sustained damage to
the rear whilst motor vehicle registration number 92 CN 110 displayed damage to
the front. Both Mr. McEntee and the Respondent admitted to having driven their
respective vehicles.
- In
the course of his conversation with the Respondent Sergeant McGuinness detected
a smell of intoxicating liquor from his breath. Sergeant McGuinness formed the
opinion the Respondent had consumed intoxicating liquor. Then Sergeant
McGuinness assembled an apparatus for indicating the presence of alcohol on the
breath, in the Respondent’s presence, and required him to provide a
specimen. On so doing the apparatus recorded a positive result. As a result
of this test and his observations, Sergeant McGuinness formed the opinion that
the Respondent was under the influence of an intoxicant to such an extent as to
be incapable of proper control over a vehicle.
- At
1.15 a.m. Sergeant McGuinness informed the Respondent that he was arresting him
under Section 49(8) of the Road Traffic Act 1961 to 1994 for having committed
an offence contrary to Section 49 subsection 3 of the Road Traffic Acts 1961 to
1994. He also informed the Respondent in ordinary language that he was being
arrested for drunken driving. The Respondent was conveyed to Ballyconnell
Garda station by patrol car and arrived there at 1.27 a.m. The Respondent was
introduced to Garda Brian Doyle the station orderly and member in charge.
Garda Doyle completed the custody record in respect of the Respondent. In
Section B of the custody record under the heading offences or other matter in
respect of which arrest was made Garda Doyle inserted the word Section 49
subsection 8 Road Traffic Act. Subsequently thereafter a Doctor was called and
the Respondent gave a sample of his blood and as a result thereof found to be
positive.
5. This
was all given in evidence and at the conclusion of the Appellant’s case
Mr. Kelly on behalf of the Respondent submitted
inter
alia
that Garda Doyle had recorded the offence in respect of which the Respondent
had been detained as Section 49 subsection 8 of the Road Traffic Act 1961 to
1994 and that that subsection only gave power of arrest and did not describe
the offence in respect of which the Respondent had been arrested. Sergeant
McGuinness pointed out that the Respondent had been arrested under Section 49
subsection 8 of the Road Traffic Act 1961 to 1994 for offences contrary to
Section 49 subsection 2 or 49 subsection 3 of the Road Traffic Acts 1961 to 1994.
6. It
is submitted by the Applicant that the reference in the custody record Section
49 of the Road Traffic Acts 1961 to 1994 was a sufficient description of the
offence for which the Respondent had been arrested. Section 49 subsection 8 of
the Road Traffic Act states as follows:-
“A
member of the Garda Siochana may arrest without a warrant a person where the
member’s opinion he is committing or has committed an offence under this
Section.”
7.
No reference was made in the case stated to Section 8 of the regulations as to
whether or not they had been complied with but having regard to these
circumstances. I have presumed they were complied with and therefore a member
in charge had told the Respondent in ordinary language the offence for which he
was being detained. It was submitted on behalf of the Applicant that the
descriptive reference in the custody record of Section 49 subsection 8 of the
Road Traffic Act was sufficient to comply with the requirements of Section 7
paragraph C namely the nature of the offence or other matter in respect of
which the accused was arrested. I accept that the reference in the custody
record of Section 49 subsection 8 of the Road Traffic Act 1961 was sufficient
to convey to the attention of the accused the nature of the offence or other
matters in respect of which he had been arrested and therefore complied with
the requirements of the regulations.
8. However
that is not the end of the matter. Section 7 of the Criminal Justice Act 1984
also provides that a failure on the part of any member of the Garda Siochana to
observe any provisions of the regulations shall not of itself render that
person liable for criminal or civil proceedings or of itself effect the
lawfulness of the custody of any detained person or the admissibility of
evidence of any statement made by him.
9. Therefore
it is quite clear that even if the insertion of Section 49 subsection 8 as
opposed to Section 49 subsection 2 was a failure to observe the provision of
the regulations, it is equally clear from the statute that in itself is not a
fatal error but requires the Judge to exercise his discretion as to whether or
not such a failure should render unlawful the custody of the obtained person or
the admissibility of any evidence of any statement made by him.
10. In
my view having regard to the terms of the case stated the learned Judge did not
exercise his discretion in this matter but appears to have taken it that he had
no option but to dismiss the case.
11. The
learned Trial Judge had exercised his discretion then he should have had in
mind the cases of the
DPP -v- Spratt
I.L.R.M. 1995 volume 2 at p. 123 wherein Mr. Justice O’Hanlon quoting
with approval the case of
Walsh
-v- O’Buachalla
1991 I.R. p. 56 applies the same principles and in that case Mr. Justice
Blayney refusing an application for Judicial Review stated and I quote:-
“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.”
12. Having
regard in my mind the Judge did not exercise his discretion in determining this
case therefore for both those reasons I find he was not correct in law in
dismissing the said charge.
© 2001 Irish High Court