High Court of Ireland Decisions

THE HIGH COURT

2002 No 866 S.S.

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL

PROVISIONS ACT, 1961 (N0. 39 OF 1961)

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA NIALL DEEGAN)

Prosecutor

-and-

CELENE MURPHY

Accused

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 22nd day of July 2002.

1.      This matter comes before me by way of a consultative case stated pursuant to s. 52 (1) of the Courts (Supplemental Provisions) Act, 1961 by Judge Gerard Haughton, a judge of the Dublin Metropolitan District Court.

2.      The accused stands charged before the District Court of an offence contrary to s. 13 (3) of the Road Traffic Act, 1994 (the Act of 1994) of refusing to permit a registered medical practitioner to take from her a specimen of her blood in circumstances where she was arrested pursuant to s. 49 (8) of the Road Traffic Act, 1961 (as amended) and was required by the prosecuting member of An Garda Síochána pursuant to s. 13 (1) (b) of the Act of 1994 to permit a designated doctor to take from her a specimen of her blood, or at her option, to provide for the designated doctor a specimen of her urine.

3.      The applicant was arrested at Clyde Road, Dublin on 1st April, 2001 and the case stated recites the fact that the learned judge of the District Court is satisfied that the arrest was lawful and that no issue arises therefrom. It is stated that the accused arrived at Donnybrook garda station at 12.12 a.m. and at the garda station the Custody Regulations were complied with and Dr. Hooper was called to the station as a designated doctor and that he arrived there at 12.49 a.m. The accused was introduced to Dr. Hooper and he was introduced to her as the designated doctor.

4.      At 1.03 a.m. Garda Deegan made a requirement of the accused under s. 13 (1) (b) of the Road Traffic Act, 1994 to permit Dr. Hooper to take from her a specimen of her blood, or at her option, to provide for Dr. Hooper a specimen of her urine. Garda Deegan indicated the consequences of failure or refusal to comply with this requirement, namely that failure or refusal to comply with the requirement or failure or refusal to comply with a requirement of the doctor in relation to the taking under the subsection of a specimen of blood or the provision under the subsection of a specimen of urine was a specific offence under s. 13 of the Act of 1994 and the penalty on summary conviction was a fine not exceeding £1,000 or a term of imprisonment not exceeding 6 months or to both. This was explained in plain language and it is recorded that the accused replied “O.K. I refuse - one thousand pounds.”

5.      Garda Deegan accepted in evidence that he did not explain to the accused that a consequence of any conviction was that, in addition to any of the penalties that might be imposed by the court, she would be disqualified for driving for a period of not less than two years.

6.      On the basis of this conceded failure to explain the consequential disqualification it was submitted by counsel for the accused that the prosecution had not proved its case in that while the garda had explained the penalties he had failed to explain to the accused that as a consequence of a conviction for failing or refusing to comply with his requirement under s. 13 (1) (b) of the Act of 1994 she would be disqualified from driving for a period of not less than two years.

7.      The learned judge of the District Court indicated in response to the submissions made to him that as the Supreme Court had held in the case of Conroy v. Attorney General [1965] I.R. 411 that such a disqualification order was not to be regarded as a penalty that he was of the opinion that Garda Deegan had adequately and sufficiently explained to the accused the provisions of s. 13 (1) (b) and the consequences of a failure or refusal to comply therewith.

8.      The learned judge of the District Court was requested by the accused to state a case on the issue for the opinion of this court and did so by case stated of 18th April, 2002. The opinion of this court is requested on the following questions of law:

(a) Am I correct in holding that following the making of a lawful requirement of an accused under the provisions of s. 13 (1) (b) of the Road Traffic Act, 1994, it is sufficient for the garda making the requirement to set out and explain to the accused the penalties for failure or refusal as set out in paragraph 3 (d) above.

(b) If the answer to (a) is in the negative must the garda making the requirement also explain to the accused the nature and extent of any consequential disqualification following conviction for an offence under s. 13 (1) (b) aforesaid.

Submissions:

9.      Counsel on behalf of the Director of Public Prosecutions submits by reference to the decision of the Supreme Court in the case of Director of Public Prosecutions v. McGarrigle [1996] 1 ILRM 271 and the more recent decision of the Supreme Court in the case of Director of Public Prosecutions v. Mangan [2002] 1 ILRM 417 that the question posed at (1) above should be answered in the affirmative and that in the circumstances the question at (2) does not arise. Without prejudice to this submission counsel relies upon the decision in the case of Attorney General v. Conroy (supra) in support of the contention that a consequential disqualification is not part of the penalty for the offence is any event.

10.      Counsel relies upon that portion of the judgment of the Chief Justice in the McGarrigle case where it was stated at p. 273 of the report, in reference to a submission that an accused had a right to be told that the requirement in question was being made under s. 13 because of the more serious nature of the penalties thereunder as compared to those under s. 14 of the same Act:

“I reject this last submission which appears to me to be based on an assertion that the respondent had a legally enforceable right to be volunteered information as to the seriousness of the consequences of refusal so as to permit him to decide whether or not to commit a criminal offence. He did have a right to be informed of his legal obligation subject to penal sanction to comply with the requirement and this on the facts as found he was afforded.”

11.      In the recent case of Director of Public Prosecutions v. Mangan [2002] 1 ILRM 417, the same principles of law arose, albeit in the context of the Act of 1994 as opposed to the Road Traffic (Amendment) Act of 1978. Keane C.J. referred to the earlier McGarrigle case and stated, inter alia as follows at pp. 425-426.

“The rationale of the decision is clear. Generally speaking, the defendant or putative defendant to criminal proceedings cannot be required to assist the prosecution in the ultimate conduct of their case by incriminating himself or herself. While there are statutory exceptions to this principle - of which s. 13 is one - a prosecutor who seeks to rely on them must satisfy the court by the adduction of affirmative evidence that, at the minimum, the person concerned was informed at the time that he was obliged by statute to provide the appropriate information or material - in this case a specimen of blood or urine - and that he would be committing an offence and exposing himself to penalties if he failed to comply with that requirement. Were it otherwise, in a case under s. 13 a person might find himself (convicted of an offence where a demand had been made of him) without any indication as to the legal basis for the demand. That, it was held in McGarrigle, was not the law.

The judgment does not indicate the level of detail which must be contained in the verbal requirement. It is not in dispute in this case that, had the garda used the formula ‘pursuant to the provisions of s. 13 (1) (b) of the Road Traffic Act, 1994’ when making the requisition, the appellant could not succeed on this branch of the argument. Since it has also been conceded that s. 13 (1) (b) of the 1994 Act is the only section in the road traffic code which includes such a requirement and since the requirement itself was summarised in unexceptionable terms by the garda, I think it is clear that, given the rationale of the judgment in McGarrigle, the omission of ‘1994’ after ‘Road Traffic Act’ was immaterial. So far as being informed of the legal basis for the demand was concerned, the appellant was in as good a position as he would have been if the garda had used the formula ‘Road Traffic Act, 1994’.”

12.      Based upon the two cited decisions of the Supreme Court, it is submitted by counsel that when making a requirement under s. 13 (1) (b) a member of an Garda Síochána is required to specify the legal basis upon which that requirement is made and that a failure to comply therewith will lead to the imposition of penal sanctions. It is submitted that in the instant case the prosecuting member more than complied with that obligation in all of the circumstances. Furthermore, as the consequential disqualification order is not classified as being part of the penalty, counsel submits that in any event the garda was under no obligation to inform the accused of the fact that a conviction under s. 13 carries with it a mandatory disqualification from driving.

Conclusion:

13.      It is clear that no authority exists in support of the case made before the learned District Judge that there was an obligation on the prosecuting member of an Garda Síochána to acquaint the accused of the consequential disqualification order that would be made in the event of a conviction. I am satisfied that no such requirement exists and that it is clear that the accused was appropriately informed of the penalties for a failure or refusal. The consequential disqualification is not part of the penalty (Conroy’s case) and accordingly the accused was not mislead as to the penalty attaching to the offence. What is important is that a due requirement was made of her. The McGarrigle decision does not itself suggest that there is an obligation on the part of a garda exercising the power under s. 13 (1) (b) to inform an accused of the penalties attaching to any contravention of the section. Furthermore, there is no requirement to acquaint the person of whom the requirement is made of the fact that consequential disqualification arises in the event of a conviction under s. 13 (3). I am satisfied that the learned judge of the District Court was correct when he indicated to counsel for the accused the effect of the Conroy case and that in his opinion Garda Deegan had adequately explained to the accused the provisions of s. 13 (1) (b) and the consequences of a failure or refusal to comply with the requirement made.

14.      I will accordingly answer the first question as follows:

Following the making of a lawful requirement under the provisions of s. 13 (1) (b) of the Road Traffic Act, 1994 it is sufficient for the garda making the requirement to indicate at a minimum to the person concerned at the time that he or she is required to permit the taking of a specimen of blood or at the option of that person to provide a specimen of his/her urine that he or she would be committing an offence and exposing himself or herself to penalties in the event of failure to comply with that requirement.

15.      In the circumstances it is not necessary to answer the second question.