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Cite as: [2001] 2 IR 373, [2001] IESC 40, [2002] 1 ILRM 417

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D.P.P. v. Mangan [2001] IESC 40; [2001] 2 IR 373; [2002] 1 ILRM 417 (6th April, 2001)

THE SUPREME COURT

KEANE C.J.

DENHAM J.

GEOGHEGAN J.

324/98

CASE STATED PURSUANT TO THE PROVISIONS OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

SIMON MANGAN

ACCUSED/APPELLANT

JUDGMENT delivered the 6th day of April 2001 by Keane C.J. (nem. diss.)

1. This is a Consultative Case Stated by Judge Patrick McCartan of the Circuit Court. It arises out of the prosecution of the appellant in respect of an offence alleged to have been committed by him of refusing to permit a designated doctor to take from him a specimen of his blood contrary to s. 13(3) of the Road Traffic Act, 1994 (hereafter “the 1994 Act” ). The appellant was convicted in the District Court of the alleged offence and appealed to the Circuit Court.

2. I think that it is helpful at the outset to set out the relevant statutory provisions. Section 13(1) of the 1994 Act provides that:

“Where a person is arrested under s. 49 (8) or 50 (1) of the Principal Act or s. 12 (3), or where a person is arrested under s. 53(6), 106(3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following ...

(b) require the person either -

(i) to permit a designated doctor to take from the person a specimen of his blood, or

(ii) at the option of the person, to provide for the designated doctor a specimen of his urine,

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.”

Section 13(3) provides that

“... A person who, following a requirement under subsection (1)(b) -

(a) refuses or fails to comply with the requirement, or

(b) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.”

3. The only witness called on behalf of the prosecutor in the Circuit Court was Garda Christine Dowling. She gave evidence that she had been on duty on the 11th April 1996 at approximately 12.30 a.m. as an observer in a garda patrol car which was being driven at or about the Dublin Road, Swords. She observed a motor car being driven in an erratic fashion. The driver put on the flashing beacon on the patrol car and the vehicle which had been observed being driven in an erratic fashion stopped and the driver got out. Garda Dowling approached the driver who gave his name as Simon Mangan, of Borranstown, Ashbourne, Co. Meath, the appellant.

4. Garda Dowling said that she formed the opinion that the appellant was incapable of having proper control of the motor car due to the consumption of an intoxicant, arrested him and conveyed him to Swords Garda Station. A

5. Dr. Williams was called and arrived at 12.40 a.m. When the doctor arrived, the appellant was brought to the doctor’s room.

6. Garda Dowling then said in her evidence:

“At 1.05 a.m., I required the appellant pursuant to the provisions of s. 13(1)(b) of the Road Traffic Act to permit the designated doctor to take from him a specimen of his blood, or at his option, to provide the designated doctor with a specimen of his urine.”

7. She also explained that it was an offence not to comply and she explained the penalties involved.

8. Garda Dowling said that the appellant opted to give a urine specimen and was provided with the relevant jug by the designated doctor. She said that there then followed several attempts on the part of the appellant to provide a urine specimen. On three occasions he went into the toilet area and attempted to give a specimen, but was unable to provide it. Her evidence went on as follows:

“At 1.48 a.m., I then made a further requirement of the accused to provide for the designated doctor a sample of his blood and I explained the penalties to him. He refused to give a specimen.”

9. That completed the case for the prosecution.

10. Counsel for the appellant advanced two submissions to the learned Circuit Court judge. First, he said that there was not sufficient evidence before the court that the requirement on which the prosecution relied had been made under s. 13(1)(b) of the Road Traffic Act of 1994. He pointed out that other Road Traffic Acts - those of 1961, 1968, 1973 and 1978 - contained a section 13 and the 1961 Act contained a section 13(1)(b). Counsel submitted that, having regard to the decision of this court in Director of Public Prosecutions .v. McGarrigle , decided by this court on 22nd June 1987 and reported in the form of an appendix to Brennan .v. Director of Public Prosecution , [(1996) 1 ILRM 267 at p. 271] it was an essential proof that the requirement had been made by Garda Dowling under the Road Traffic Act 1994.

11. Having heard submissions on behalf of the prosecutor, the learned Circuit Court judge said that, while he accepted that there had been no express evidence given that the Road Traffic Act in question was the Road Traffic Act 1994, he was prepared to draw the inference that the requirement had been made under the 1994 Act.

12. Counsel secondly submitted that the requirement with which the applicant had refused to comply was that made at 1.48 a.m. when he was simply required to provide a blood sample. Counsel submitted that there was no provision in the 1994 Act or indeed in any other Road Traffic Act providing for the legality of such a requirement. It was accordingly submitted that, in the circumstances, the requirement with which the appellant had refused to comply was neither the requirement set out in the charge nor a requirement provided for by the 1994 Act.

13. Having heard submissions on behalf of the prosecutor, the learned Circuit Court judge said that he was satisfied that the requirement made at

1.48 a.m. merely repeated the earlier requirement or in the alternative was not relevant.

14. The learned Circuit Court judge said in the Case Stated that, at the request of the appellant, he had agreed to state for the opinion of this court the following questions of law:

“(i) In the circumstances before me, where the evidence given was that the requirement made by Garda Dowling at 1.05 a.m. was made pursuant to s. 13(1)(b) of the Road Traffic Act, was I entitled to infer that the requirement was made under the Road Traffic Act, 1994?

(ii) If the answer to the above question is yes, whether I was correct in law in holding that the requirement made at 1.48 a.m. was merely a repetition of the requirement made at 1.05 a.m. or in the alternative otiose?

(iii) If the answer to (ii) above is ‘no’, was the requirement which the appellant refused to comply with a lawful requirement?”

15. On behalf of the appellant, Mr. Feichín McDonagh S.C. submitted that the effect of the decision of this court in McGarrigle was that a person charged with the offence of refusing to give a specimen when required to do so could not be convicted of that offence unless the court of trial was satisfied that he or she was informed of the specific section of the relevant statute - in this case

s. 13 of the 1994 Act - under which the requirement was being made. That this was the effect of the decision in McGarrigle was, he urged, made clear by the subsequent decision of this court in The Director of Public Prosecutions .v. Hand , (1994) 1 IR 577. Hence, the omission by Garda Dowling to specify the Road Traffic Act under which the requirement was made was fatal: for all the appellant knew, she could have been referring to s. 13(1)(b) of the Road Traffic Act, 1961 which dealt, of course, with an entirely different matter. He submitted that this was in accordance with the principle laid down in McGarrigle, i.e. that the obligation to give a specimen which may establish the commission of a serious offence is an exception to the general principle of the criminal law protecting accused persons against involuntary self-incrimination. It followed, as the court went on to hold in McGarrigle, that in such circumstances the making of the requirement under the relevant section with which the accused had allegedly failed to comply must be affirmatively proved and could not be left to be inferred, as was argued on behalf of the DPP in that case and again in this case.

16. As to the second and third questions in the Case Stated, Mr. McDonagh submitted that it was not open to the learned Circuit Court judge to hold that the requirement made at 1.48 a.m. was not relevant: that was the requirement with which the appellant refused to comply. He had not refused to comply with the requirement made at 1.05 a.m. (which, Mr. McDonagh conceded, assuming the principle in McGarrigle did not apply, was lawfully made). On the contrary, it was accepted on behalf of the DPP that he had made a bona fide attempt to provide the specimen of urine and hence must be taken as a person who was perfectly willing to comply with the requirement made at 1.05 a.m. The requirement purportedly made by the garda at 1.48 a.m. was not one authorised by the statute in any way and, in the result, the appellant who had demonstrated his willingness to comply with a lawful requirement, was perfectly entitled not to comply with the unlawful requirement.

17. On behalf of the prosecutor, Mr. Michael O’Higgins submitted that, in relation to the first question, the learned Circuit Court judge was entitled to infer that the requirement had been made pursuant to s. 13(1)(b) of the 1994 Act. It was not suggested that there was any other section 13(1)(b) in the Road Traffic Acts to which the garda could have been referring: that contained in the 1961 Act plainly related to a wholly different subject matter.

18. The appellant had not merely been informed that the requirement was being made pursuant to a specified section of a Road Traffic Act, i.e. s. 13(1)(b): he was also told that the requirement obliged the appellant to permit the designated doctor to take a specimen of his blood and that the appellant, at his option, could elect to provide the designated doctor with a specimen of his urine. She also explained to him that it was an offence not to comply with the requirement. He submitted that the case was thus entirely distinguishable from McGarrigle, where the prosecuting garda had gone no further than informing the accused that if he refused or failed to give a sample of blood or urine, he would be committing an offence attracting penalties. He submitted that it was also clear from the subsequent decision of this court in Brennan .v. DPP that it was sufficient for the prosecution to establish that the basic provisions of the section were outlined to the accused person and that he or she was made aware of the basis on which he or she was being asked to provide a specimen. He said that if the observations of Finlay C.J. in Hand indicated a different view of the law, they were obiter and accordingly not binding on this court.

19. As to the second and third questions in the Case Stated, Mr. O’Higgins said that it was accepted on behalf of the prosecutor that, if a person in garda custody avails of the option to provide urine, but finds that he is unable to do so (as happened in the present case) no offence is committed. However, he submitted that, in such circumstances, the obligation to permit the taking of a blood specimen revives and, should he then fail or refuse to permit the doctor to take that specimen, he is properly charged with that offence, citing in support the decision of this court in DPP (Coughlan) .v. Swan , (1994) 1 ILRM 314. That was what happened in this case and, accordingly, the true position was that the obligation to permit the taking of the blood specimen was revived, not by virtue of anything said by the garda at 1.48 a.m., but rather by virtue of the requirement originally made at 1.05 a.m.

20. It is clear that Mr. McDonagh’s submission that the failure by Garda Dowling in this case to refer specifically to the Road Traffic Act, 1994, when making the requirement at 1.05 a.m. was a fatal defect in the prosecution’s case, depends, initially at least, on whether this case is governed by the decision of this court in McGarrigle. It is accordingly essential at the outset to be clear as to what was decided by that case.

21. The facts are set out in the judgment of Finlay C.J., with whom Hederman and McCarthy JJ. concurred. They were as follows:

“(a) The respondent was arrested under s. 49(6) of the Act of 1961 and brought to a garda station.

(b) He was required by the garda to give a sample of blood or urine and informed that if he refused or failed it was an offence attracting penalties.

(c) The garda did not in making the requirement invoke any specific or identifiable section or sub-section of the Road Traffic Acts 1961 to 1978.

(d) The respondent refused to give a specimen.”

22. The District Court had dismissed the case on the ground that there was no evidence that the requirement was made pursuant to s. 13 of the Road Traffic Act 1978 and that it could have been made equally well under either

s. 13 or s. 14 of that Act. (It should be noted in passing that s. 13 and s. 14 of that Act deal with the taking of a specimen from a person who has been arrested under the “driving while drunk” and “drunk in charge” sections respectively, if I can so describe those provisions: in the 1994 Act, there is an omnibus section, i.e. s. 13, dealing with both situations.) There was then an appeal by way of Case Stated to the High Court which held that the charge had been correctly dismissed in the District Court. That decision having been appealed to this court, it was submitted on behalf of the Director of Public Prosecutions that, since the only legal power vested in a member of the Garda Siochána to require the giving of a specimen from a person arrested under the “drunk driving” section was contained in s. 13 of the 1978 Act, the court should have inferred, having found that the arrest was under that section, that the requirement was under s. 13. It was submitted on behalf of the respondent that s. 13 had to be construed strictly, and that, so construing it, an essential ingredient of the charge, namely, that the requirement was made under s. 13 must be affirmatively established by evidence and could not be inferred from what would amount to a presumption of regularity or legality. That submission was accepted by Finlay C.J., who said:-

“The obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique exception to the general principles of our criminal code which protect accused persons against involuntary self incrimination. The enforcement of it on the terms of s. 13 of the Act of 1978 depends completely on proof that the requirement refused was made under that section. Such a basic requirement in a serious matter must, it seems to me, be affirmatively proved and not left to be inferred. I would accordingly dismiss the appeal.”

23. It will be seen that the evidence in that case went no further than establishing that the accused was required by the garda to give a sample of blood or urine and informed that if he refused or failed it was an offence attracting penalties. So far as the summary of the facts by the learned Chief Justice goes, it would appear that he may not have been informed that it was a statutory as distinct from a common law requirement or from what law the obligation derived. He was certainly not informed that the requirement was being made under any specific provision of the Road Traffic Acts.

24. 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.

25. 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” .

26. Mr. McDonagh also relied on the judgment of this court in Director of Public Prosecutions .v. Hand , where Finlay C.J. said:-

“I am quite satisfied that the principle laid down [in McGarrigle’s case] is properly to be seen as a principle not of an amendment or addition by judicial decision to the provisions of s. 13 but rather of the pronouncement of a necessary fair procedure and condition precedent by way of evidence for a valid prosecution and conviction under s. 13 in the case of a person charged with the offence of refusing to give a specimen when required to do so. Such a person as is stated in McGarrigle’s case cannot be convicted unless the court of trial is satisfied that he or she was informed that it was under that section that the requirement was being made.”

27. That observation should be seen in its proper context. Hand was not a case in which a prosecution had been brought, as in McGarrigle, for refusal to give a specimen of blood or urine. It was a prosecution under the “drunk driving” section, where the person had been required to give a specimen of blood or urine and had been told that the requirement was made under s. 13, but had not been informed of the penalty involved in refusing. It was held in the High Court that this was fatal to the prosecution’s case, but this court unanimously held that that was not so. In the course of his extempore judgment (with which Hederman, O’Flaherty, Egan and Blayney JJ. concurred) Finlay C.J. said that the High Court was in error in concluding that the case was ruled by McGarrigle, since the respondent had not refused to give a specimen and had not been charged with so refusing.

28. It is, accordingly, clear that the passage on which Mr. McDonagh relies is obiter. I am satisfied, moreover, that the learned Chief Justice in that passage was not purporting to define with any degree of precision the actual formula which a garda may safely invoke when making a requirement pursuant to the relevant section and that even if his dictum was part of the ratio in the case - which it plainly was not - it is not authority for the proposition that the formula invoked in this case was insufficient.

29. We were also referred to the decision of this court in Brennan .v. Director of Public Prosecutions , in which the accused had been fully informed of the contents of the relevant section before the specimen was provided, although the actual section itself was not invoked. This court upheld the decision of the High Court that the failure to specify the section was not fatal. However, since that was a case in which the prosecution had been brought under the “drunk driving” section and not under the equivalent s. 13 of the 1994 Act, it could not be regarded as determinative of the issue which has arisen in this case.

30. I am satisfied, for the reasons I have already given, that the learned Circuit Court judge was entitled to reach the conclusion in this case that the requirements laid down by this court in McGarrigle’s case had been met. I would, accordingly, answer the first question posed in the Case Stated “yes”.

31. The second and third questions in the Case Stated must therefore be approached on the basis that the learned Circuit Court judge was entitled to infer that the requirement made by Garda Dowling at 1.05 a.m. was made pursuant to s. 13(1)(b) of the Road Traffic Act, 1994. It was, accordingly, a lawful requirement under that section, a failure to comply with which rendered the appellant liable to conviction for the offence created by subsection (3). At that point in time, accordingly, the appellant was obliged either to permit the designated doctor to take a specimen of his blood or, at his option, to provide for the doctor a specimen of his urine. The obligation of the appellant to permit the doctor to take a blood specimen was therefore in abeyance during the period when, as is accepted, the appellant made a bona fide attempt to exercise the option available to him of providing a specimen of his urine. I have no hesitation in rejecting a submission advanced by Mr. McDonagh that he remained under an obligation to permit the doctor to take a specimen of his blood during the very time that he was endeavouring to provide a specimen of urine. There cannot be the slightest doubt as to what the intention of the Oireachtas was: it must have been envisaged that, in every case where a person chose to avail of the option to give urine, an interval of time, however short, would elapse before the specimen was provided. It must equally have been envisaged that, in some cases, a person might be simply unable to provide a specimen and again it cannot have been the intention of the Oireachtas that in those circumstances the appellant would at that point in time have committed an offence in having refused to permit the doctor to take a specimen of his blood or to provide a specimen of his urine, nor indeed (not surprisingly) is any such submission advanced on behalf of the appellant in the present case.

32. It follows inevitably that, provided the garda had given a reasonable time to the applicant to provide the specimen, and it is not suggested that she had not, the duty on the appellant to permit the doctor to take a blood specimen revived at the end of the period in question. As Egan J. put it in Director of Public Prosecutions (Coughlan) .v. Swan at p. 315:-

“The obligation under the section is to permit the taking of a specimen of blood but subject, at the option of the person, to provide a specimen of his urine. The word used is ‘option’. If the person declares that he wishes to avail of the option but then finds that he is unable to do so, the obligation to permit the taking of a specimen of blood revives and, in such circumstances, a refusal by him to permit the taking of blood is the offence with which he should be charged.”

33. It follows that, when Garda Dowling at 1.48 a.m. made what she described as the “further requirement” of the appellant to provide a sample of his blood for the doctor and explained the penalties to him again, she was doing no more than drawing his attention the fact that the obligation to provide a specimen of his blood had now revived, as was indeed the case. The appellant, who at that stage must be presumed, because of the terms of the requirement made by Garda Dowling at 1.05 a.m., to have been aware of the statutory obligation to provide a specimen of blood, or, at his option, of urine, and of the consequences of a refusal or failure so to do, nonetheless refused to permit a specimen of his blood to be taken.

34. I am satisfied that the learned Circuit Court judge in those circumstances was entitled to hold that appellant had refused to comply with a lawful requirement pursuant to s. 13(1)(b) of the 1994 Act. I would answer the second question in the Case Stated “yes” and the third question in the Case Stated “yes”.