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Judgment
Title: | Oates -v- District Judge Browne & another |
Neutral Citation: | [2016] IESC 7 |
Supreme Court Record Number: | 420/2010 |
High Court Record Number: | 2009 614 JR |
Date of Delivery: | 29/02/2016 |
Court: | Supreme Court |
Composition of Court: | Hardiman J., Laffoy J., Dunne J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Appeal allowed |
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| Judgments by | Link to Judgment | Concurring | Hardiman J. | | Laffoy J., Dunne J. | |
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THE SUPREME COURT
[Appeal No: 420/10]
Hardiman J.
Laffoy J.
Dunne J.
Between/
MICHAEL OATES Applicant/Appellant
and
DISTRICT JUDGE GEOFFREY BROWNE Respondent
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Notice Party/Respondent
Judgment of Mr. Justice Hardiman delivered the 29th day of February, 2016.
1. This is the appeal of the applicant/appellant from the judgment and order of the High Court (Mr. Justice Charleton) of 11th November, 2010. The High Court dismissed the applicant’s application for an order quashing his conviction dated the 5th June, 2009 for an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act 1994.
Nature of the offence alleged and the defendant’s application.
2. The applicant was charged that, on the 21st July, 2008 at Elphin, Roscommon, “he drove a mechanically propelled vehicle 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 breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath”, contrary to the statutory provisions set out above.
This offence is sometimes referred to as “drunken driving”, and is so described in the judgment of the learned trial judge. But it is not now (or for nearly forty years) necessary to prove that the person charged with it was in any ordinary sense of the term “drunk” or “incapable of having proper control” of his or her vehicle. This latter proof was required by s.49 of the Road Traffic Act 1961, as originally enacted. This latter Section has been repealed by s.33 of the Road Traffic Act 2010 but its effect is re-enacted, with modernisations, by s.4 of that same Act. However, the old offence of driving while “incapable of having proper control” of a vehicle is rarely or never used, having been superseded, first in 1968, by provision for blood or urine testing and in 1994 by an additional provision for evidential breath testing.
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A note on Statutes.
The statutory provisions about drink driving offences are needlessly complex and confusing. There are a number of reasons for this. One is the tendency to repeal a provision in a statute by a later Act, which later Act however contains elsewhere a provision substantially re-enacting the repealed provision in the same words or in substance. This happened in relation to the old s.49 offence, repealed and re-enacted by Sections 33 and 4 of the Act of 2010 respectively. Another reason for needless complexity and confusion is the draftsman’s fondness for introducing an entirely new provision by amendment or substitution of a previous provision rather than starting afresh with a new Section. There is also a tendency to repeal or amend a provision by a later provision, but not to bring the later provision into force. This makes the Statute book positively misleading.
The effect of all this is to make statutory provisions extremely difficult for a layman to access, and to understand which of the myriad statutory provisions on any particular subject represent the present law or the law as it was at any particular past time. This tends to make a nonsense of the important legal principle that everyone is deemed to know the law. For example, it would be best tolerably easy for a dedicated lay person to establish that s.49 of the 1961 Act, after a number of substitutions, has been definitively repealed by the Road Traffic Act, 2010. But this exercise would not inform him that it has been in substance re-enacted and modernised by a different Section of the same Act.
This complexity is by no means limited to Road Traffic Statutes but is to be found, notoriously, in Planning and Tax statutes. As we shall see later in this judgment, it is also to be found in Freedom of Information legislation.
In an attempt to mitigate the confusion caused by these arcane drafting practices, I have set out in Appendix A to this judgment the evolution of the statutory formulations in the Road Traffic Acts of the offence originally constituted by s.49 of the Road Traffic Act 1961 and of the offence originally constituted by s.29 of the Road Traffic Act 1968 (the original excess alcohol in blood or urine offence)
In Appendix B I have set out the evolution of the statutory right to be given a portion of a sample of blood or urine where required under the Road Traffic Acts. This right has existed continuously since the introduction of the mandatory provision of bodily substances for testing in 1968.
In Appendix C I have set out some of the important statutory provisions, applicable in 2008, which are cited in this judgment.
In constructing these appendices I have concentrated narrowly on the subjects indicated above and have left out, accordingly, all mention of other topics and any amendments which are irrelevant to the main point, for example because they relate merely to penalties or to matters of evidence.
As Appendix A shows, the original form of the charge has long been very largely superseded, first by the Road Traffic Act, 1968 (by the creation of an offence of driving with more than a certain quantity of alcohol in the blood or urine). More recently this once novel system was itself largely superseded (by the Road Traffic Act 1994, not widely used for some years thereafter) by the creation of an offence of driving with an excessive quantity of alcohol in the breath. The gardaí retain the power, at their exclusive option. to require a specimen of blood or urine, rather than breath, but this is seldom exercised, and in practice is exercised only where there is some problem with the analysis of breath specimens, from the point of view of the gardaí.
The breath specimen used in court is called an “evidential breath specimen” and is taken and analysed in a Garda Station, and must be distinguished from the “preliminary” or roadside breath specimen, which is used for screening purposes only.
Independent Analysis.
3. When blood or urine testing were in vogue with the legislature, and with the gardaí, it was required by law that any sample of blood or urine be divided and one portion given to the defendant who could then carry out his or her own analysis. This obligation still exists: s.s. 10, 12 and 15 of the Road Traffic Act 2010.
But the possibility of independent analysis ceased to exist in the very large majority of cases, without any express legislative provision abolishing it, when the legislature decided to replace the procedure based on laboratory analysis of blood or urine with a procedure based on analysis, by an automatic process carried out in a garda station, of a breath specimen. Unlike blood or urine, the breath specimen is said to be transitory and not to admit of the possibility of preserving a part of it for subsequent analysis by or on behalf of the defendant. That this is so was recognised (on the evidence provided) by this Court, as it had been by the High Court, in McGonnell v. Attorney General [2007] 1 IR 400 at 409.
Chief Justice Murray said, in a passage of great significance for the present case:
“It is… abundantly clear that where the preferred method of testing is breath and breath only, the person in question is in a significantly different position from an individual who has been requested to give blood. Whether the sample should be blood or urine is immaterial in this context.
Such a person has an opportunity of having a portion of a single specimen independently assessed if he so wishes. That portion must have the same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative of guilt. It is the opportunity which is critical to fair procedures and constitutional justice”. (Emphasis added)
This matter has not been addressed by the legislature in any way. Statute law has not noticed at all the unilateral abolition, in most cases, of the opportunity for independent analysis, which this Court held to be “critical to fair procedures and constitutional justice”. The law has simply provided an alternative test. This new test, in practice, has almost entirely displaced the old one in practice and thus ended the opportunity for independent testing which was held to be “critical” to fair procedures and constitutional justice.
4. As noted above, the opportunity of a separate analysis which might confirm or might contradict the result of the official analysis simply does not arise in the context of a breath specimen. Where a person has been arrested and brought to a garda station for evidential alcohol testing, a member of the gardaí, at his sole discretion, may determine whether the person is to be required to produce (a) an evidential breath specimen or (b) a blood or urine specimen. This is the effect of s.12,13 and 15 of the Road Traffic Act 1994 as amended. According to the leading modern work, Staunton Drunken Driving (2015), both breath and blood or urine may be demanded. But only breath was required in the present case.
Accordingly, the present system of evidential testing for the concentration of alcohol in the body of a driver is now operated in the great majority of cases by the automatic analysis of a breath specimen. It is “automatic” in the sense that the analysis is performed by the Intoxilyser machine, without any laboratory analysis or any human input. When the evidence was provided by analysis of blood or urine it was obligatory to offer to the driver a portion of the sample for his own analysis. It was this opportunity independently to test the sample that this Court in 2007 held to be “critical to fair procedures and constitutional justice”. Now this “critical” opportunity has been abolished in practice. This case raises the question: what are the legal consequences of that abolition?
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5. The statute of 1968, as originally passed, provided that the Medical Bureau of Road Safety’s Certificate of Analysis of the specimen of blood or urine was “conclusive”.
The pre-history of the Act of 1968 is instructive in this regard. I cannot set it out more lucidly than was done by Fitzgerald C.J. in Maher v. The Attorney General [1973] I.R. 140, at 148:
“Part V of the Road Traffic Act, 1968, derives in the main from the report of the Commission on Driving while under the Influence of Drink or a Drug, which was published in 1963. The Commission investigated, in particular, the feasibility of introducing objective tests, by reference to blood-alcohol content or otherwise, of incapacity to drive. As the explanatory memorandum published with the Act of 1968 points out, the main import of the Commission’s recommendations was accepted; but certain aspects of those recommendations were reserved for further investigation and consultation. The eventual legislative implementation is to be found in ss. 27-47 of the Act of 1968. The provisions set out in those sections follow, in the main, the recommendations in the Commission’s report, but they differ from those recommendations in two important ways. First, the Commission had recommended that proof that an accused person’s blood-alcohol level exceeded the permitted level should be merely prima facie evidence that he was unfit to drive: see para. 61(3) of the report. That recommendation was not accepted; instead it was enacted by the amendment in s.29 of the Act of 1968 that driving while the blood-alcohol level exceeded the permitted level should in itself be an offence. Secondly, while the statutory provisions generally implement the Commission’s recommendations as to the ascertainment of the blood-alcohol level from analysis of specimens of blood or urine compulsorily taken or given, the legislature rejected the recommendation of the Commission that the certificate of the analysing authority as to the result of the analysis should be merely prima facie evidence of what is certified: see para. 61(7) of the report. Instead, s. 44 sub-s. 2(a) of the Act of 1968 makes the certificate conclusive evidence of the correctness of the blood-alcohol level as determined by the certificate”.
The history thus summarised was not merely incidental to the decision in Maher. The argument was made in that case that the statute might be preserved, simply deleting the adjective “conclusive”, but the Court was not prepared to do this on the basis that, if it did, it would effectively be setting up as law the rejected recommendation of the Commission or something akin to it. It would be providing for something that the legislature had deliberately and unambiguously rejected.
But this “conclusive” provision was found unconstitutional in Maher. The case concerned the constitutionality of s.44 of the Road Traffic Act, 1968 which provided, insofar as relevant, that the relevant certificate:
“… be conclusive evidence that at the time the specimen was taken or provided the concentration of alcohol in the blood of the person from whom the specimen was taken… was the specified concentration of alcohol”.
The judgment of the Supreme Court in that case is that of Chief Justice Fitzgerald. He held at p.145 that the effect of the provision quoted was that:
“… it precludes the District Justice from forming any other judgment in respect of this vital ingredient of the prosecution case: he is bound under the terms of the statutory provision to proceed as if this had been his own judgment in the matter… it is clear that the object of the statutory provision was to remove this element altogether from the area of contestable facts. In effect it means that the accused person is not free to contest a determination of the concentration of alcohol set out in the Certificate”.
(Emphasis added)
Accordingly, for these reasons, the provision which made the Bureau’s Certificate “conclusive evidence” was found to be unconstitutional.
This reasoning is very significant in the present case as well. In light of Maher a person accused of an offence under the present s.49 must be “free to contest a determination of the concentration of alcohol set out in the certificate”.
The word “conclusive” no longer features in the Statutes. But, on the Director’s reading of the 1994 Act, something closely approaching conclusivity is provided, if the machines print out is not in reality “contestable”. The language “in reality” derives from Whelan v. Kirby, [2005] 2 IR 30 at 46, another decision of this Court, cited below. In my view, Maher requires that the contents of the print out must be realistically contestable, contestable in reality, and not simply in some theoretical or hypothetical sense.
Maher v. The Attorney General [1973] I.R. 140 was concerned with the analysis of a specimen of blood or urine. The present case is concerned with a later statute providing for the analysis of a specimen of breath. But this case is not on that account distinguishable from Maher. There, this Court held at p.145 that the question of the result of an analysis of a specimen taken from the driver cannot be “remove[ed] altogether from the area of contestable fact”. It was decided at p.145 that the relevant portion of the 1968 Act was unconstitutional because “… it means that an accused person is not free to contest the determination of the concentration of alcohol set out in the Certificate”.
If an accused person must be free to contest the result of an analysis of a specimen of blood or urine, it appears to me to follow inexorably that such a person must be free to contest the result of the analysis of a specimen of breath. There is no logical distinction between the two. Indeed, a driver who has provided a specimen of blood or urine is better placed to challenge the analysis: that analysis will have been done by a human person in a State laboratory who can if necessary be called to give evidence; moreover such a driver will have been provided with a portion of the specimen analysed. The breath specimen, by contrast, does not permit a portion of the specimen to be given to the driver; and it is analysed by a machine, by an automatic process, with apparently with no prospect of verification or contradiction.
The process of analysis and the working of the testing apparatus, is carefully concealed from the public generally, as we shall see, in the context of Freedom of Information, below. These matters are no better known to the public now than they were when statutory provision for evidential breath analysis was first made over two decades ago.
The statute now in operation must accordingly be construed, if the wording makes this possible, so as to permit this “contesting” of the Intoxilyser’s determination of the concentration of alcohol in the transient breath specimen. If the wording does not permit this, a constitutional issue will clearly arise. But that would be another case.
In construing the statute which provides for the present system of evidential breath testing, therefore, one must also bear in mind what was held by Geoghegan J. in Whelan v. Kirby [2005] 2 IR 30 at p. 45 - 46, paras. 26, to the effect that the Intoxilyser presently in use is:
“… a machine which effectively could by its own print out convict the accused without there being in reality any opportunity to rebut [the contents of the print out] notwithstanding that under the Act the presumption is rebuttable”.
It is not without significance to note that, even when (during the period 1968 - 1973) the laboratory analysis of a blood or urine sample was regarded as “conclusive”, a driver suspected of a drink driving offence was, by s.46 of the Act of 1968, nonetheless entitled to be afforded the opportunity to have an additional specimen taken, or to be supplied with a portion of the specimen which the gardaí had taken, “so that, if he wishes, he can have his own analysis carried out”. (See p.145 of the Report in Maher). This right was assured to the suspect notwithstanding the provision in the same statute that Medical Bureau Certificate was “conclusive evidence” of its contents. It appears that all the suspect could then do with his or her portion of the specimen was to ask the Bureau to carry out a second analysis pursuant to s.45 of the Act, “or it may provide evidence from which he could establish that the procedure followed by the Bureau was not in accordance with the Statute or the Regulations”. (ibid)
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The replacement of blood or urine by breath as the testing material had certain obvious advantages for the State. Specifically, it is no longer necessary to retain a registered medical practitioner or nurse to take the blood sample, and divide it in two, and then to bring the practitioner to court to give evidence. This, no doubt, is a financial saving and a considerable convenience to the prosecution. But it involves the loss of the opportunity for independent analysis, which opportunity has been held by this Court to be “critical to fair procedures and constitutional justice”. Accordingly it can be seen that the wholesale through unspoken abandonment (except, perhaps, in very rare cases of which this is not one) of the “critical” opportunity for independent analysis is a major legal development and, from a constitutional point of view, in light of Maher, poses a serious question. In the absence of any possibility of independent testing, how precisely is the Intoxilyser’s print out to be “contestable”, as that case requires?
We have seen, above, that the decision as to whether a defendant must give a blood or urine specimen, in which event he can be given a portion of the specimen for analysis on his behalf, or a breath specimen, in which case that opportunity does not exist, is entirely made by the State. Thus the State decides whether or not the driver can have the evidential sample independently tested or whether he is to be denied that “critical” opportunity.
6. In the present case the garda in question required, and required only, a specimen of breath. Accordingly there was no prospect of independent analysis of either of the two specimens which the defendant was required to give. This was the result of the garda’s choice. The driver had no option but to comply. He had no option to provide a sample of blood or urine, instead of breath, which blood or urine sample would have been capable of subsequent independent testing. It would not be a transitory specimen.
The Applicant’s complaints.
In those circumstances, when the matter came on for hearing before the District Court, the defendant’s solicitor sought an opportunity to have an expert on the defendant’s behalf, (a Forensic Scientist, Mr. Anderson), examine the Intoxilyser machine which had analysed the breath specimens by an automatic process and which had produced a certificate indicating the concentration of alcohol in the breath. The solicitor also sought certain documentation relevant to the Intoxilyser machine, its calibration, its servicing and its maintenance. He was refused all of these requests, and that is Mr. Oates’s core grievance. However, he also says that he was refused these requests by the learned Respondent without giving any reasons whatever for such refusal, despite a specific request for reasons. This, says Mr. Oates, breaches Fair Procedures and Constitutional justice, and independently justifies the grant of certiorari.
Infallibility?
Some might think, or hope, that the process of analysis is always correct, and in practice conclusive of the true position. But it appears that, like any complex process, the taking of a sample of a bodily substance and its analysis to show the concentration of alcohol in the body is fallible. On 25 January, 2016, at an inquest in Clonmel, Co. Tipperary, the Coroner, Mr. Paul Morris, directed the jury to disregard the result of an analysis of blood for alcohol in the case of one of the drivers involved in a fatal collision. The reading showed a concentration of 913 milligrams of alcohol per 100 millilitres of blood. The pathologist who performed an autopsy on the person whose blood was analysed, Dr. Landers, said of this reading that “it would be impossible”. He said that unconsciousness or death would supervene at less than half that level. He described the reading produced by the analysis as “spurious”. No doubt such peculiarities are unusual, but they plainly occur from time to time and have occurred very recently in this recorded instance. (See Irish Times, 26 January 2016, p.6)
In the Clonmel case the reading obtained on analysis is plainly a significant multiple of any remotely likely reading, even assuming a very large consumption. A less dramatically “spurious” result might, in many cases, have escaped attention. But it is fair to add that it was stated at the Clonmel Inquest that the deceased was a non-drinker.
Factual background.
7. According to the garda evidence in the case, the applicant (who is a van driver) was arrested on the 21st July, 2008 having failed a mandatory alcohol test on the roadside in Elphin, Co. Roscommon. He was taken to a garda station and required to produce an evidential breath specimen pursuant to s.13(1)(a) of the Road Traffic Act 1994. As a result of the analysis produced by an Intoxilyser machine, he was charged with the offence mentioned above, and released on his own bail to appear at Strokestown District Court on the 4th September, 2008. The decision to require a breath sample, rather than blood or urine, the decision to proceed by charge sheet, rather than by summons, and the appointment of the 4th September as the return date, were entirely the choice of the gardaí and not of the defendant. He had no role either in the selection of the procedure or in the appointment of the return date.
8. There is some considerable confusion and contradiction within the prosecution evidence as to the events which occurred. In the Director’s Statement of Opposition, verified by affidavit, it is alleged that the offence took place on the 2nd October, 2006, but the garda statements, and the oral evidence of the garda in the District Court was entirely at variance with that and states that the offence took place on the 21st July, 2008 one year and nine months later. The garda is almost certainly correct, and the Director almost certainly wrong, because the Statement of Opposition goes on to allege that the defendant first appeared before Strokestown District Court on the 4th September, 2008, which is quite inconsistent with the offence having been committed back in 2006. But I do not think anything turns on this contradiction.
9. It is however common case that the case was adjourned for hearing to the 6th November, 2008. It is also common case that on that day the applicant’s solicitor, Mr. Cullen, sought an inspection of the Intoxilyser machine located in Roscommon Garda Station. The Director says, at para. 2 of his Statements of Opposition that this application was refused, on the 6th November, 2008, the learned Respondent. The Respondent himself said that this was so. He said this on the 27th May, 2009, the day the case was eventually finalised. From the other evidence I would have thought the first refusal took place on the 4th December 2008. I do not think anything turns on this disparity.
10. Mr. Cullen says in his affidavit that he was instructed to attend court on behalf of the applicant; that he did so on 6th November, 2008 and at later dates; that there was a variation in the two readings produced by the Intoxilyser machine which “put one on inquiry” as to the condition of the machine; that the guard could only say that he “presumed” the machine had been properly serviced. Mr. Cullen applied for an opportunity for the machine to be inspected and examined by an expert on behalf of the defendant. He also sought to be provided with a number of documents or materials which related to the machine itself. These were the Calibration Certificate, the Certificate of Installation, the Certificate of Commissioning, the Irish Certificate of Testing of the Machine, the Quantum Scientific Laboratory Service Reports on the machine and the same entity’s record of the results of tests on the machine. He says that in support of his application he cited the case of McGonnell v. Attorney General [2007] 1 IR 400 cited above. It was the High Court judgment which he opened ([2004] IEHC 312) and Mr. Cullen says he referred in particular to para. 111 of the judgment of Mr. Justice McKechnie, quoted at para. 19, below. (See also the Supreme Court decision in McGonnell, p. 409, para. 14).The prosecution were represented at that time by Superintendent William Gallagher who stated to the Court that he believed that the McGonnell case had been “superseded”.
The learned Respondent said that there was a more recent case which overturned the case Mr. Cullen had cited. He said that some of Mr. Cullen’s colleagues would know the name of the case. He adjourned the matter for mention to the 4th December, 2008.
11. On the 4th December, 2008, Mr. Cullen had a copy of the Supreme Court decision in McGonnell, which affirmed the High Court decision. He opened it at length.
There now arises a further point of significance for the issues between the parties. Mr. Cullen says that:
“Judge Browne refused my application for documents and inspection facilities without giving a reason for same. I pressed the judge to give a reason for his refusal. He did not answer. I asked him whether he was refusing both inspection facilities and all the documentation that I had applied for and to which I believed I was entitled arising from the High Court case. The court clerk then offered to show the judge what she had written down and held back over her head so that the judge could view it. He said that he was refusing inspection facilities for the machine and for documentation”. (Emphasis added)
The emphasised portions of this testimony, in particular, have not been contradicted or challenged by the Notice Party.
12. In the affidavit of Superintendent Gallagher, at para. 6 he says:
“I disagreed with the interpretation of Mr. Cullen and I made contrary submissions to the judge in relation to the proper interpretation of the McGonnell decision. Judge Browne considered both arguments and refused the application for inspection”.
13. It therefore appears to be undisputed that the learned Respondent gave no reasons for his refusal of the application to inspect the Intoxilyser machine. The significance of this omission is the first and narrowest point that arises for decision, but it may of course be dispositive.
The case was then adjourned in the District Court until the 25th February, 2009. On this occasion there was a different Garda Superintendent representing the prosecution, Superintendent Collins. The prosecution evidence was called and the solicitor cross-examined the prosecuting guard. He asked him if the machine was properly serviced and “he said that he presumed it was”. It is not contradicted that he expressed himself thus.
14. The defence solicitor then asked for a direction basically on the ground that he was fatally handicapped by the denial of inspection facilities. He said his expert had specifically advised that he could not decide on the proper working of the machine without inspection facilities. He relied on the McGonnell v. Attorney General [2007] 1 IR 400, previously opened. The learned District Judge (again?) refused the application. The defence called Mr. Anderson who explained in some detail why he needed access to the Intoxilyser machine in order to advise the applicant and to check the reliability of the documents sought. Mr. Cullen says that the prosecuting Superintendent then indicated that he had not read the McGonnell judgment. Mr. Cullen gave him a copy of it. The learned Respondent then adjourned the case until the 25th March, 2009 to allow the Superintendent time to read the case.
15. On the 25th March, 2009 the learned Respondent noted there was now a new presenting officer. He then said that the defence might be inclined to argue there was a lack of continuity in the presenting officer. Mr. Cullen said he was making no such point. He reiterated that his application for a direction related to the effects of the refusal to allow any inspection facilities. The learned Respondent said that “he would have to start to hear the evidence over again”. Neither side had asked him to do this. The garda said that Superintendent Cummins would be available to present the case the following month. The learned Respondent adjourned the case for that purpose.
The above account of events is also uncontradicted.
16. However, on the adjourned date, the 22nd April, 2009, Superintendent Cummins was again absent. An Inspector Joseph McKenna prosecuted. He said that all that was awaited was a determination. Mr. Cullen submitted that they were still at the point where he was applying for a direction and the prosecution had been given time to read the McGonnell v. Attorney General [2007] 1 IR 400 case. The Inspector says in his affidavit, at para. 4 that:
“I had not appeared in the case previously and I was not familiar with the McGonnell judgment”.
He says that Mr. Cullen indicated that he had an expert, a Mr. Anderson, present in court to give evidence, however the case was adjourned “despite Mr. Cullen’s prolonged protestations” as Inspector McKenna puts it.
The adjourned date was the 27th May, 2009. Mr. Anderson gave evidence on that day. On that date, according to Inspector McKenna at para. 7:
“The judge indicated that he had made the decision not to grant inspection facilities in November 2008 and had heard nothing to alter the view he had taken then”.
He proceeded to convict Mr. Oates, as recited at para. 1 above.
Significance of the foregoing.
17. It appears from the foregoing convoluted history that this fairly simple case was adjourned in the District Court on the following occasions:
- 4th September, 2008,
- 6th November, 2008,
- 4th December, 2008,
- 25th February, 2009,
- 25th March, 2009,
- 22nd April, 2009,
- 27th May, 2009, when the case was finalised.
None of these adjournments seem to have been at the request of the applicant and certain of them were imposed upon the applicant, against his solicitor’s “prolonged protestations”, by the learned Respondent. There were adjournments because the prosecuting Superintendent had not read the McGonnell v. Attorney General [2007] 1 IR 400 case, because the same prosecuting Superintendent was not available to attend on the adjourned date after the case had been adjourned to allow him to read that case, because the new presenting officer had not read McGonnell either, and adjournments for no particular reason at all (that is stated) as in the case of the adjournment from the 22nd April to the 27th May, 2009.
Though it is by no means clear why some of the adjournments were required it does appear, both from the Statement of Opposition and from the Affidavit of Inspector McKenna that the learned District Judge stated that the relevant application for inspection had been refused at the hearing in November, 2008, which took place on the 6th of that month. I frankly do not understand why, if that was so, the evidence was not heard until the following year and the case not finalised until the 27th May, 2009, or why the evidence was apparently heard twice.
On the 6th November, 2008 the prosecution was represented by Superintendent Gallagher. The proceedings in Court on that date have been outlined above, and the significant parts of that account are not contradicted.
Case Law relating to the above.
18. The McGonnell v. Attorney General [2007] 1 IR 400 case, much referred to in the District Court proceedings summarised above, was concerned with the trial of certain persons against whom the new provisions of the Act of 1994 had been deployed. They claimed that the relevant provisions of that Act (Sections 13, 17 and 21) were unconstitutional having regard to Articles 38.1 and 40.3 of the Constitution. This was said to be so by reason of the impossibility of providing a portion of the evidential sample for independent testing and by reason of the evidential status conferred on the print out containing the automatic analysis of the breath specimen in s.21(1). This provided, insofar as relevant:
“A duly completed certificate purporting to have been supplied under s.17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 - 1994, of the facts stated therein”.
This, the plaintiffs contended in McGonnell, amounted to “conviction by print out”.
19. The plaintiffs lost in McGonnell both in the High Court and the Supreme Court. But the ratio of the decision depended on the finding that a defendant had a right to apply to the District Court for inspection of the Intoxilyser. This aspect was emphasised in both courts. In the High Court, McKechnie J. said at para. 111:
“… there is one further safeguard which I consider of particular relevance. It is the entitlement of an accused person to seek inspection rights of the machine used to provide a s.17(2) certificate in respect of him. Given not only the legal force but also the practical consequences of the presumption contained in s.21(1) of the Act of 1994, it is in my view an important assurance for an accused person to know of his right to have access to a judicial authority for the purpose of seeking inspection facilities in respect of any given machine. When so deciding, the Court in question must of course comply with constitutional justice and fair procedures on any application so made, as it must on the hearing of the s.49 charge itself. In both instances it may vindicate such rights of the defendant in the most appropriate manner available. These observations equally apply to any application in respect of documentation”.
(Emphasis added)
The foregoing passage was specifically approved in the judgment of the Supreme Court, [2007] 1 IR 400 at 417, at para. 29.
That judgment also made reference to the judgment of Geoghegan J. in Whelan v. Kirby [2005] 2 IR 30. At page 417, para. 29 Murray C.J. said that in that case Geoghegan J.:
“… specifically pointed out that the presumption under the Act of 1994 is rebuttable and expressly acknowledged the entitlement of an accused person to apply to conduct an inspection of the apparatus so as to investigate its reliability. An accused person is further entitled to adduce evidence regarding the manner of operation of the apparatus at the relevant time of the provision of the breath specimen”.
(Emphasis added)
20. In Whelan a conviction under s.49 was quashed where the applicant was not accorded an opportunity to have an independent expert inspect the Intoxilyser prior to the trial. The District judge simply refused to entertain the application and the trial proceeded without an inspection, just as here. In the Supreme Court, it was held that the District judge ought at least to have entertained the application on behalf of the applicant. Geoghegan J. said, at pages 45 - 46 para. 26 of the report:
“Unless there are exceptional circumstances, indicating abuse of the process of the Court, constitutional fairness of procedure requires that a pre-hearing application to a judge of the District Court for an order requiring the production of documents and/or a request for inspection of the equipment permitted to be used by statute for the purpose of producing a statement of facts deemed to be true unless rebutted, and essential to the prosecution case, ought to be entertained. It will then be within the discretion of the judge as to whether he or she accedes to the request or not”.
Geoghegan J. went to describe the intoximeter then in use as:
“… a machine which effectively could by its own print out convict an accused without there being in reality any opportunity to rebut, not withstanding that under the Act the presumption is rebuttable”.
(Emphasis added)
At p.45, para. 25 of Whelan v. Kirby Geoghegan J. held that, in refusing to entertain the applicant’s arguments for inspection, the District judge “was cutting off the applicant from any possibility of rebutting the statutory presumption”.
This position must be seen in light of the decision of this Court in The State (Healy) v. Donoghue [1976] I.R. 325.
At p. 349 of the Report O’Higgins C.J. analysed the phrase “in due course of law” as it appears in Article 38 of the Constitution:
“No person shall be tried on any criminal charge save in due course of law”.
O’Higgins C.J. held that:
“… it is clear that the words ‘due course of law’ in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself. If this were not so the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights”. (Emphasis added)
Immediately after the passage just cited O’Higgins C.J. went on specifically to approve the dictum of Gannon J. in the High Court in the same case, who said:
“Amongst the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser…”.
In the present case, no question of “hearing” the evidence offered by the accuser on the question of the concentration of alcohol in his body exists. This is because the relevant evidence is given by a print out produced automatically by a machine, which has been given evidential status. The print out cannot be cross-examined. The question arises of how the right to “test” or “investigate” the reliability of this evidence can be afforded the accused in the present circumstances. This right is fundamental to the concept of a trial” in due course of law”.
It follows from the citations above that a person charged with driving with an excessive quantity of alcohol in his or her breath is treated quite differently from persons charged with other criminal offences. If such a person is not granted the ability to examine the Intoxilyser machine then he or she may be convicted “without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable.
If he or she is refused inspection rights then such a refusal will amount to “cutting off the applicant from any possibility of rebutting the statutory presumption”. Such a person, manifestly is not “afforded every opportunity to defend himself [or herself]” as required by Article 38 of the Constitution nor are they afforded the right “to hear and test by examination the evidence offered by or on behalf of [the] accuser”.
Cross Examination.
In particular, the right to rebut the machine’s analysis of the breath specimen by cross-examination is wholly lost. No human person conducted, or even supervised, the analysis, so that there is no-one available to cross-examine. Neither the machine, nor the print out, naturally, can be cross-examined.
Since the offence created by the present version of s.49 of the Road Traffic Acts is a criminal offence, and the prosecution for the offence is a criminal trial albeit one conducted summarily, the abolition of the right to cross-examine is a very serious development. This right has been long and strongly established in Ireland, in recent times from In Re Haughey [1971] I.R. 217, O’Callaghan v. Mahon [2006] 2 IR 32 and, in very recent times DPP v. Thomas Redmond [2015] IESC 98 (Supreme Court, unreported, 17th December, 2015). In this latter case there was a citation of Heaney v. Ireland [1994]
3 I.R. 593 on the meaning of the phrase “due course of law” followed by the statement:
“To this I would add that elementary justice requires that a person who is liable to some sanction or imposition, based on how a factual issue is resolved before any body, tribunal, or committee which is obliged to proceed in accordance with natural justice, is entitled to confront his accuser or accusers and to cross-examine them or have them cross-examined”.
(Emphasis added)
In various contexts, in Ireland and elsewhere, attempts have been made to present evidence against a person in a form which does not admit of cross-examination. An example of this in Ireland was found in the case of Borges v. Fitness to Practice Committee of the Medical Council [2004] 1 IR 103. There, the applicant doctor was facing an enquiry under Part V of the Medical Practitioners’ Act 1978 in relation to allegations by two complainants whom it was intended to call as witnesses. But the Registrar of the Medical Council, who was conducting the case against the doctor, applied to the Committee to order that the complainants would not be called in evidence but instead that he would introduce a transcript of the evidence they had given before a foreign Medical body. The Committee agreed to proceed on that basis. The High Court held that this procedure would amount to a deprivation of a fair hearing by depriving the doctor of the opportunity to confront his accusers. This Court held that the doctor could not be deprived of his right to fair procedures by extending the exceptions to the rule against hearsay to a case where witnesses were unwilling to testify in person. The Court also held that fair procedures, in the context of the case, necessitated the giving of evidence by the doctor’s accusers and their being cross-examined.
It must be borne in mind that the deciding body in that case was not a court. The Medical Council submitted that it might on that basis be entitled to admit evidence which would not be admissible in court proceedings. It was held that it could not do so in order to avoid cross-examination.
Keane C.J. said at p.113, para. 26 of the Report that, where a decision of the relevant tribunal reflects on a person’s good name or reputation:
“… basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers”.
Chief Justice Keane sets out ample support for this proposition in terms of both Irish and English law.
______________________________________________________________21. The accused person’s declared right to apply for inspection of the machine which produces a statement of the concentration of alcohol in the breath by an automatic process was central, and essential, to the High Court’s and this Court’s refusal to find the relevant Sections of the Act of 1994 unconstitutional in McGonnell.
22. Applying the principles enunciated in McGonnell v. Attorney General [2007] 1 IR 400 and in Whelan v. Kirby [2005] 2 IR 30 to the facts of the present case, the following features of relevance emerge.
(i) Mr. Oates was entitled to apply for a professional inspection of the intoxilyser on his behalf, and for documents relevant to the operation of the machine.
(ii) The most practical reason for the existence of this right, in terms of a s.49 prosecution, is that the presumption created by s.21(1) is a rebuttable presumption, and unless there is an opportunity to investigate the operation of the machine then there is not “in reality” any opportunity to rebut [the contents of the print-out] not withstanding that under the Act the presumption is rebuttable”.
(iii) Once such an application for inspection of documents is made then:
“The Court in question must of course comply with constitutional justice and fair procedures on any such application so made”.
(iv) It appears from the affidavits filed in the present case that the intoxilyser produced readings which were not identical in relation to the breath specimens supplied by Mr. Oates. There was no finding as to the significance, if any, of this.
(v) It further appears that the garda witness, who was the sole witness for the prosecution had the question of the condition and maintenance of the intoxilyser machine raised with him. He was only able to say that he presumed it was properly maintained.
(vi) On the uncontradicated evidence of Mr. Cullen, Solicitor, the learned Respondent rejected the application for inspection facilities and for documents without giving any reason at all, although specifically requested to do so.
(vii) The solicitor grounded his application both when it was first made and on the date to which it was put back to allow the State to read the case relied on, on McGonnell. The only specific thing which the learned Respondent said in relation to the merits of the application was “that there was a more recent case which overturned the case Mr. Cullen had cited”.
Undisputed error.
23. It is important to be clear that in making the statement last recorded the learned Respondent was in error. McGonnell v. Attorney General [2007] 1 IR 400 has never been overturned in any sense of the term. The Supreme Court in that case did not overturn the High Court decision, but in fact adopted it. And no case since McGonnell has overturned it or refused to follow it. The error may have arisen from the prosecution submissions that McGonnell had been “superseded”. The learned Respondent seemed to remember a particular case as having “overturned” McGonnell, but he could not remember its name.
24. It is entirely unclear what significance the learned Respondent attached to the fact that, as he incorrectly believed, McGonnell had been “overturned”. Did this mean that Mr. Oates had no right to apply for inspection? Did it mean there was no necessity in law to entertain the application? There may conceivably be some other significance, quite unknown to the Court or to the appellant, arising from the misapprehension under which the learned Respondent laboured.
Discretion.
25. It is manifestly true, on the basis of both McGonnell v. Attorney General [2007] 1 IR 400 and Whelan v. Kirby [ 2005] 2 IR 30 that the fact that there is a right to apply for inspection and for documents does not mean that such application must be granted. On the other hand, it follows from the existence of the right to apply, stated to be “of particular relevance” that inspection and/or documents equally may be granted. Whether they are granted or not is a matter for the judicial discretion of a District judge.
It is to my mind a significant factor affecting the exercise of this discretion that, on the face of it, the s.21(1) presumption cannot be rebuttable “in reality” unless the defendant can conduct some form of investigation into the operation of the machine which produces the print out to which the s.21(1) presumption applies. This was expressly held by Geoghegan J. in Whelan in 2004. That case was decided shortly after the evidential breath test procedure had become general, although statutory provision had been made some ten years earlier. Section 21(1) provides that the print out of the Intoxilyser machine shall “until the contrary is shown, be sufficient evidence… of the facts stated therein”.
The effect of this Section is to throw on to the defendant the proof of the inaccuracy or unreliability of the machine or the print out it generates. I cannot see how this can be done unless there is an opportunity to observe the machine in operation, in the way Mr. Anderson, Consulting Engineer, said in evidence in the District Court he desired to observe it, and to establish that the machine has been properly maintained and serviced, as its manufacturers directions require.
The constitutionality of a statute which attributed this status of presumptive correctness to a statement in a print out, and at the same time removed from the driver the opportunity of having an independent analysis carried out, was preserved, in McGonnell, only by virtue of the driver’s opportunity to apply to the Court to inspect the Intoxilyser machine.
Accordingly, it is important not to interpret the statute, as elucidated in McGonnell, in a reductive way, for example by saying that the driver cannot rebut the print out because he has not been permitted to inspect the machine, and cannot inspect the machine because he cannot demonstrate what the likely effect of such inspection would be. That is a Catch-22. Whelan v. Kirby in a passage cited below, quite specifically rejected the submission that, in order to obtain access to the machine for inspection purposes one has to say what the result of the inspection would be. The Supreme Court in that case held that there is no onus on the applicant to establish that the results of the inspection might assist his defence. The reasons for this inspection are, as Geoghegan J. held at p.45 of the report, are “self evident”.
In DPP v. Moore [2006] IEHC 142, a case where inspection of the machine was ordered, and a case was stated at the request of the prosecution. O’Neill J. held that a District Judge dealing with such an application must consider:
“… whether without that evidence [i.e. evidence of the inspection] the accused is disadvantaged in his defence, to such an extent that it could be said he cannot have a fair trial”.
26. The power to require a defendant to provide a breath specimen for evidential analysis, as opposed to a specimen of blood or urine which could equally have been demanded, puts it in the power of the gardaí to determine whether or not a defendant can have an independent analysis. By selecting a breath specimen as a means of breath testing, the garda renders impossible an independent analysis of the evidential specimen, for the reasons stated earlier in this judgment. That is not to say that the garda in this case opted to demand a specimen of breath for that purpose. He did it, no doubt, because it had become usual to do so.
27. Against that background, s.21 gives a presumptively correct status to the machine’s analysis and casts upon the defendant the onus of showing the contrary. This appears to me to be a burden impossible to discharge “in reality” unless facilities requested in the present case are granted. I do not exclude the possibility that there may be some extraordinary feature which might make the inspection and the provision of documents otiose. I do not accept that the defendant has to prove something in the nature of probable cause for analysis before having a right to inspect. The result of the State’s analysis must be “contestable”, as Fitzgerald C.J. held in Maher v. Attorney General.
Material from other Common Law jurisdictions.
28. The use of transient proofs of intoxication whether modern ones (such as breath specimen analysis) or traditional ones (such as observation by police officers or by a doctor) have given rise to obvious difficulties which have been addressed by the Courts in certain other jurisdictions. Naturally, these cases fall to be considered against the background of the general criminal and constitutional law in the relevant foreign jurisdiction.
In California v. Trombetta & Ors. 467 US 479 at 480 to 481 the United States Supreme Court (per Justice Marshall) held, by way of constitutional background:
“The due process clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favourable evidence that is material either to guilt or punishment [citations omitted]. This case raises the question of whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of the defendants”.
The point at issue in that case was whether the Due Process Clause requires that law enforcement agencies preserve breath samples of suspected drunken drivers in order for the results of breath analysis tests to be admitted in criminal proceedings.
The United States Supreme Court held that the State of California was not obliged to preserve such breath specimens although (contrary to the evidence presented to the Irish Courts in McGonnell) it also held that it was technically possible to do that. But it rejected the driver’s claim on the basis of the safeguards already provided in Californian law. At p. 490 of the Report it is said:
“Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations”.
(Emphasis added)
Set out at pages 481 - 482 of the Report there are set out the procedures which have to be followed in the cleaning, operation and calibration of the machine. These details were amongst the general operating requirements which, in the U.S. case, were freely available to the defendants and to the Court. Also set out is the procedure required to be followed after each test and before any other test involving the purging of the machine with clean air and the checking of the machine for a reading of zero alcohol. The document concludes:
“The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant”. (Emphasis added)
The Trombetta case was cited in a most interesting New Zealand case, R. v. Donaldson [1995] 3 NZLR 641. This was a decision of the Court of Appeal in Wellington, delivered by Mr. Justice Thorp, the Chief Justice and Boys J. concurring.
In that case Ms. Donaldson was found asleep in the driver seat of a stationary car. A police witness arrested her because, on observation, she was unsteady on her feet and slurred in her speech. She was arrested for “driving under the influence” and brought to a police station where she consented to undergo a medical examination.
The case turned on the provisions of s.24(d) of the New Zealand Bill of Rights Act, 1990. This guaranteed a person charged with a criminal offence “adequate time and facilities to prepare a defence”.
It had been held in a New Zealand case referred to at p. 645 in the judgment at p.5, that this right “is designed to put the defence on a footing of equality with the prosecution in preparation for a fair trial. That right must include adequate access to evidence which the accused requires to present his or her case” (R. v. Accused (CA 357/94) (1994) 12 CRNZ 417 at 425).
Against that background, Ms. Donaldson, when she was taken to the police station requested that a sample of blood be taken from her. She had no right to demand it but it seems from the report that the Constable in charge could have arranged that a blood sample be taken but Ms. Donaldson was told that they were proceeding by way of medical examination and that this did not include the taking of blood. She repeated the request for a blood specimen to be taken on several occasions and got the same response. The Court of Appeal pointed out at p.649 that by the time Mr. Donaldson was released from the police station:
“… any chance of obtaining useful chemical evidence about the state of her sobriety and the significance of alcohol would have been lost, even had facilities for blood testing been available to her in Dunedin at that time of night”.
The most relevant question which had been referred to the New Zealand Court of Appeal was whether, if the police officer did not provide facilities for a blood sample to be taken, that omission constituted a breach of s.24(d) of the Bill of Rights Act. The Court concluded at p.650 that:
“For the reasons set out in the foregoing judgment it is our view that, for the reasons there stated, the refusal in this case to consider and accept the appellant’s request to arrange for the taking of a blood sample did constitute a breach of s.24(d)”.
A factor in Donaldson was that although a police witness and a doctor gave evidence that she was incapable of having proper control of a motor vehicle “because of alcohol intoxication”, a roadside breath test for alcohol had proved negative. Depending on the view the tribunal of fact took of the police and medical evidence, this fact suggested either a defect in the breath sampling system or an error in the evidence given by a doctor and a police officer, that she was intoxicated.
The judgment of the Court of Appeal of New Zealand also contains, at p.646, an interesting summary of the salient features of the “very large body of case law in the United States and a smaller but still substantial number of decisions in Canada”, relevant to the facts of Donaldson. See para. 6 above, entitled “Infallibility”.
___________________________________________________________
I do not believe that the Irish requirement in Article 38 of the Constitution that all trials should be conducted “in due course of law” is in any respect a less demanding standard than that required in the United States by the Due Process Clause of the Fourteenth Amendment, nor by the New Zealand Bill of Rights. Over and above that, it is interesting that the State of California guaranteed to defendant drivers rights of inspection and access to documentation, of precisely the sort sought by Mr. Oates here, and did so at the time when it introduced the breath sampling system. This enabled the relevant statutory provisions to survive constitutional challenge on the basis that no part of the specimen had been preserved for independent analysis. Similarly one notes that the New Zealand concept of “adequate… facilities to prepare a defence”, extended to a right of access to evidence and was held to have been breached by the refusal to conduct a blood test in the circumstances outlined above.
As we are about to see, not only is there no right to inspect or see relevant documentation provided in the Irish Statutes but the system of analysis, of approval of apparatus for analysis, and documents and records relating to such apparatus and analysis have been deliberately and, it seems, conclusively, excluded from the category of document and item to which a citizen is entitled to have access, even if he has been charged with a criminal offence using the breath specimen procedure.
Nothing available on FOI.
29. I am strengthened in the above conclusion by the fact that the legislature has taken steps, in the first instance emergency steps, to prevent a person charged with a s.49 offence (or any other citizen) from obtaining, under the Freedom of Information Legislation, records relating to the receipt, analysis and certification by approved apparatus of the sample provided by him or her.
30. In H. v. The Medical Bureau of Road Safety Information (Commissioner Case No. 090073). Ms. Emily O’Reilly, then the Irish Information Commissioner (now the European Ombudsman) overruled the Bureau’s refusal to provide such documents to a person charged with a s.49 offence. The Bureau had done so on the grounds that:
“[D]isclosing the records sought in this case, which are over and above what the Bureau is required and permitted to provide in accordance with s.19(3) of the Road Traffic Act, 1994, would effectively undermine the Bureau’s obligation under s.19(3) of the Road Traffic Act 1994 thereby causing prejudice or impairment to its compliance with [that Section] and the criminal law generally relating to alleged driving under the influence of intoxicants offences”.
The Information Commissioner noted that:
“Without FOI the [Bureau] would be generally unaccountable either to the Courts or to the public with respect to its functions under the Road Traffic Acts and there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities”.
The effect of this decision was negatived by statute with extraordinary and unusual speed. The Commissioner’s decision was given on the 15th July, 2010. The State then proceeded to promulgate the Road Traffic Act 2010, which came into operation on the 9th August 2010, twenty-five days later, during a Parliamentary vacation.
The effect of this was partially to exclude the Bureau from the FOI Acts. This was done by amendment of the Freedom of Information Act 1997 (see s.26(5) of the Road Traffic Act 2010).
______________________________________________________________
The present position on FOI requests to the Bureau is governed in an opaque and convoluted way by the Freedom of Information Act 2014. Section 6 of the Act provides that Freedom of Information rights apply to, or against, “public bodies”. Section 6 of the Act defines a public body and the Bureau is caught by the definition in s.6(1)(b) as it is “an entity established by or under any enactment”. This would appear to capture the Medical Bureau of Road Safety. (See Part V of the Road Traffic Act, 1968). However, the Bureau is in fact exempted from Freedom of Information by a process so contrary to transparency and to the ordinary use of language as almost to defeat non-professional enquiry. The exclusion is effected in the following manner:
The exclusion is effected by means of Schedules, whose significance is determined by the substantive Act. The Medical Bureau of Road Safety, the body responsible for the testing of samples of blood breath or urine and for approving “apparatus” for that purpose, is an entity mentioned at para. (u) in Part 1 of the First Schedule to the Freedom of Information Act 2014.
Section 6(2)(a) of that Act provides that:
“An entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part be a public body for the purposes of this Act”.
If a lay enquirer read no further, he or she would conclude that the Bureau was within the scope of Freedom of Information.
Schedule I, Part I of the 2014 Act, however, is headed:
“Partially included agencies”.
The initial words of the Schedule are:
“Section 6 does not include a reference to -“
There then follows a list of thirty-five separate bodies. At reference (u) the following appears:
“The Medical Bureau of Road Safety…”.
Accordingly, if the material at reference (u) stopped there, the effect of it would be to wholly remove the Bureau from the scope and application of s.6. But the material does not stop there and continues to provide:
“… insofar as it relates to records concerning, or arising from, the forensic criminal investigation functions performed by the Bureau under the Road Traffic Act 1961 - 2014, including the analysis of specimens and the approval, supply, testing and maintenance of apparatus used for the purpose of those Acts”.
The difficulty in establishing the liability or otherwise of the Bureau under the FOI Acts arises from the use of multiple exceptions and of double negatives on which the draftsman would have to be congratulated if it were his object to make the provision opaque and inaccessible. But the effect of it is that the Bureau is outside the scope of s.6 “insofar” as the matters specified are concerned. The matters specified include anything that might be of the remotest interest to a person charged with an offence under s.49, who was concerned to “contest” the Bureau’s analysis, or analysis of apparatus approved by it.
It therefore appears that, in considering an application for access to documents and for facilities to inspect the Intoxilyser machine, the District Court will have to bear in mind that the documents in question, and any record relating to the analysis in question, will not be otherwise available to the defendant driver and specifically will not be unavailable under the provisions of the Freedom of Information Act by reason of the emergency action first taken in 2010 and now contained in the Act of 2014 by reason of the legislative action first taken in s.26, subs. 5 of the Road Traffic act 2010 which extended the scope of restrictions contained in s.46 of the Freedom of Information Act 1997. This legislative action was then consolidated in the Freedom of Information Act 2014 (whereby Schedule 1 explicitly removes and excludes documentation on the maintenance of apparatus which might have been previously available under the act of 1997 as an administrative document). It is not clear to me why, assuming the legislature to be confident in the operation of the Intoxilyser system, such convoluted steps have been taken to conceal its operation even from a person directly affected by it. I agree with the finding of the Information Commissioner, quoted above, as to the effect of the Medical Bureau’s far reaching exemption from F.O.I.
Onus on defendant?
31. In Whelan v. Kirby [2005] 2 IR 30, the principal judgment was delivered by Geoghegan J. with whom Keane C.J., Denham J., Hardiman J. and Fennelly J. agreed. In that case (as in this) the DPP submitted that the District judge could not have made an order for inspection or for documents in any event “as there was not going to be any evidence put forward as to what might have been determined by an inspection which would be helpful to the defence”. The Director in the present case called this “laying the ground”.
At pages 45 to 46, para. 24, Geoghegan J. adopted a portion of the written submissions of the driver in Whelan as follows:
“The trial judge seems to suggest that there is an onus on the applicants to inform the Court what the results of an inspection or examination of the Intoxilyser might have been. With respect, it would be impossible for an applicant, or a suitably qualified expert, to predict what an examination of a machine might reveal in a given case. The fact that the inspection of a machine is not a contemporaneous one would not, presumably affect its result if, for example, a design fault were noted. There may be many other instances where the [reliability] of the machine might be called into question, notwithstanding that the examination thereof is not contemporaneous”.
Geoghegan J., having cited this passage said at p.46, para. 24 to 25:
“I find myself in agreement with that statement. It would seem to me that from the defence point of view the request for the examination might be regarded as reasonable [which does not necessarily mean that it would have to be acceded to] and the reasons for the request would be self evident.
… In refusing to entertain the solicitor for the applicant’s arguments, the [District judge] was cutting off the applicant from any possibility of rebutting the statutory presumption”.
(Emphasis added)
32. It appears to me, therefore, that the head note to Whelan v. Kirby is correct when it states at p.31 at paragraph 3:
“That, in making such an application, there was no onus on the applicant to establish that the results of the inspection might assist in his defence”.
The judgment of the High Court judge in Whelan v. Kirby, Mr. Justice Ó Caoimh, who is the trial judge referred to in the passage approved by Geoghegan J. and set out above, appears to me to have been profoundly influential on the judgment of the learned trial judge in the present case. In Whelan v. Kirby [2003] IEHC 124, Ó Caoimh J., in delivering his judgment of the 7th November, 2003 (unreported) concluded that:
“I am satisfied that an onus rested upon the applicants to satisfy the District Court that the interest of justice required the examination of the instrument and that the applicants were prepared to meet the reasonable requirements of the Medical Bureau. I am satisfied that the onus lay on the applicants to demonstrate to the respondent judge the importance of the inspection and testing requested, in the light of prevailing circumstances”.
(Emphasis added)
This finding, as will be seen, is reflected in the High Court judgment in this case.
Ó Caoimh J. also held that the District judge:
“… had no authority to direct the Medical Bureau to afford the applicants the right of inspection, testing etc….”.
But these rulings cannot be regarded as authoritative in light of Whelan and McGonnell.
The High Court judgment in this case.
33. I agree with what is said by the learned High Court Judge in this case at para. 9 of his judgment ([2010] IEHC 381):
“A certificate showing the reading is admissible by virtue of s.17(2) of the Act. If the presumption were not rebuttable this statutory scheme would be unconstitutional. Consequently, there is an entitlement, as part of the trial process for a person accused of drunken driving in this way to apply to inspect the machine to ensure that it was working correctly”.
(Emphasis added)
This finding, based largely on uncited cases, is central to the resolution of this appeal.
I am unable, however, to agree with the learned High Court judge’s conclusion:
“That the decision by the learned trial judge was correct… there is no reason to disturb the conviction of the applicant for drunken driving”. (Paras. 3 and 12)
It appears to me that the nub of the learned trial judge’s decision emerges from what he says at para. 8:
“What characterises this case is the absence of any reason whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”. (Emphasis added)
This observation, and the result to which it leads, assumes that there was an onus on the applicant to put forward some reason, without having read the relevant documents about the machine and without having inspected the machine itself, for the proposition that it was “malfunctioning”. The learned trial judge, indeed, in the course of his judgment gave several examples of the sort of evidence which he considered the applicant might have provided. Thus, at para. 4 he said:
(i) “The applicant has not sworn an affidavit indicating any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath sample”.
He continued:
(ii) “He has not sworn that on the occasion of his driving and subsequent arrest that [sic] he had been teetotal for a relevant period of time”.
He further continued:
(iii) “There has thus been no engagement with the evidence either in this Court or before the learned District judge which would reasonably raise any prospect that the prosecution case was incorrect either through its own inherent weakness or through the proffering of contradictory evidence on behalf of the defence”.
(Emphasis added)
The learned High Court judge also approved at para.10 a requirement:
(iv) “… that an accused person must show the relevance of the material sought to a defence to be advanced in the trial… an accused would have to point to some circumstance which, if established in evidence at the trial, would undermine the accuracy of the print out of an Intoxilyser machine”.
It appears to me that all of the dicta cited above assume that an onus of proof rests on the applicant for inspection of the Intoxilyser machine. This is precisely what Ó Caoimh J. found in the High Court in Whelan v. Kirby in a passage set out at para. 32, above. This finding was set aside in the Supreme Court judgment in that case. I, too, do not consider that it is correct, for the reasons set out below. But even apart from that I consider that the evidence which, it is suggested, the applicant might have provided is either legally irrelevant or physically impossible to provide.
The applicant manifestly cannot indicate any reason why the Court should doubt the result of the test that was carried out mechanically on the breath specimen when he has not had the opportunity either to inspect the machine or to ascertain the manufacturer’s calibration of it and requirements as to its maintenance and storage. The requirement suggested in the first of the citations above is quite impossible to comply with in the absence of inspection and documentation. To require it as a matter of law as a precondition of inspection would be a perfect Catch-22.
Secondly to say that the applicant has failed to swear that at the time of his arrest “… he had been teetotal for a relevant period of time” is profoundly puzzling. There is no “relevant period of time” for legal purposes during which a driver might have been “teetotal”. If the driver is “over the limit” at the time of the test, and that is within three hours of the time he was seen to be driving, the offence is complete, regardless of the period of time for which he says he was “teetotal” before the driving. Neither the law, nor officialdom more generally, offers any guidance as to a “relevant period of time” which will entitle one to be acquitted or even to rebut the presumption, despite the Intoxilyser reading, if one can show that one was “teetotal” during that period. This feature has taken on a particular relevance with the advent of “morning after” or even “afternoon after” testing.
I simply do not understand the inclusion of the concept of “teetotal” in this discussion, or its legal relevance.
“Teetotal” is, according to the Oxford English Dictionary, a reduplication, extension or intensification of the word “total”. It was coined as long ago as 1833 by a speaker advocating total abstinence from all forms of alcohol, and not merely abstinence from spirits. It has no conceivable relevance to the present discussion. The Road Traffic Acts do not enjoin “teetotalism” but merely abstinence from drinking such a quantity of alcohol as will produce a reading of more than 35 micrograms of alcohol per 100 millilitre of breath at any time within three hours of driving. There is no legal or official guidance as to what that quantity is, whether it varies with age, sex, BMI or anything else. But that is not the present issue. “Teetotal” is simply of no relevance to any issue in this case.
As to the third citation, the absent evidence to which this paragraph relates is again impossible to provide without the inspection and documentation mentioned.
The fourth citation suggests that the defendant should be obliged to refer to a defence or possible defence which he might rely on, based on the inspection. This is the most obvious example of Catch-22: one cannot know what the inspection will reveal until one carries out the inspection. This was amply explained in evidence by the defendant’s expert Mr. Anderson and is repeated in his affidavit. The State in submissions and argument emphasised the fact that Mr. Anderson, though a forensic scientist, had no experience specifically with Intoxilyser machines. Mr. Anderson himself said as much quite frankly. The fact is that he could not have had such experience without a court order for inspection because all the information about the machine or “apparatus” as it is called, is within the custody of the Medical Bureau of Road Safety who have refused all applications for voluntary inspection, while the State has contested all applications for a court order for inspection. We have seen that the apparatus and its workings have been sedulously excluded from Freedom of Information. In these circumstances no-one could have experience of the Intoxilyser machine without a court order, whose issuance will be resisted by the State. This criticism of Mr. Anderson is both reductive and unfair.
The learned trial judge also said, at para. 11:
“If the defence, on instructions, have a need to apply for inspection of a machine or to have a view of the documents related to it, that this application should be notified to the prosecution and grounds given. In the alternative, an application on evidence can be made directly to the Court in advance of the trial”.
34. It is certainly true, as the learned trial judge pointed out, that “the applicant bears the burden of showing that his conviction for drunken driving should be quashed by an Order of Certiorari”. But the learned trial judge misapplies this onus, it appears to me, to the application which was made before the District Court and which the applicant had standing to make by reason of his being a person accused of what the learned High Court judge calls “drunken driving” on the basis of a breath sample which did not admit of independent testing.
35. It seems to me that all the dicta, set out in the preceding paragraph, except the last, were central to the learned trial judge’s reasoning. I have to say, with great respect, that they all appear to be based on the same fundamental proposition which I respectfully considered to be an error.
This proposition occurs several times in the course of the judgment of the High Court and is expressed in various ways, but all are based on the proposition that there is some onus on the appellant in making his application for an inspection etc. before the District Court which must be discharged before he can be granted such inspection. Ms. McDonagh S.C. for the State called it an onus to “lay the ground”. All of the dicta set out above, to the effect that the appellant did not say that he thought the Intoxilyser machine was defective in some way; did not say that he had been “teetotal” for a “relevant period”; did not “express surprise” to the gardaí at the reading of the Intoxilyser, did not swear an affidavit indicating “any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath specimen”; did not adduce any reason “whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”, derive from this proposition.
This proposition seems to me to miss an essential point. The appellant was a defendant facing a criminal charge. As such, he is entitled to “test” the evidence against him and to do so by “[cross-]examination”; to “contest” the reading of the Intoxilyser; not to face a trial in which “the evidence furnished by the Certificate from the Bureau is incontestable”; or in which “the Certificates in the Intoximeter cases are for all practicable purposes irrebuttable, notwithstanding the statutory provision to the contrary”, or in which the Intoxilyser “can by its own print out convict an accused without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable”. See Maher, Healy and Whelan, cited above.
I am also of the opinion that a defendant in any criminal case cannot be compelled to disclose his defence, or even a possible defence, in advance of hearing the prosecution case; or to indicate what defence he wishes to explore in advance of the prosecution presenting their evidence. See Sandes, Criminal Practice, Procedure and Evidence in Eire, (London 1939) p. 158; O’Malley The Criminal Process (Thomson Reuters, Dublin 2009) p.710, par. 18.30 and Hefffernan and Ní Raifeartaigh Evidence in Criminal Trials, (Dublin, 2014) p. 671, 674 and 688; DPP v. Buck [2014] IECCA 45 approves A.G. v. Durnan [1934] I.R. 540 which in turn approved R. v. Naylor, cited in Sandes, supra.
Most of the foregoing are general points, applying to criminal cases generally. But the circumstances of this case give rise to further difficulties. We have seen the somewhat tortuous statutory history whereby the need to prove actual incapacity properly to drive a motor car was replaced by a need to prove only an excess of alcohol in the blood or urine. This latter offence was based on compulsory testing with however the “critical” protection that the driver be given a portion of the sample for independent testing, if desired. Without any statement that it was doing so, the Legislature then adopted a new system of evidential breath testing which excluded the “critical” opportunity for independent analysis.
I am not aware of any case, prior to the almost total abolition of this opportunity, in which details of the operation, calibration and servicing of the apparatus used in analysis were requested. But with the silent abolition of this “critical” opportunity, a person who wishes to “contest” the machine’s reading can only do so by inspection of the Intoxilyser and perusal of the relevant documents.
A defendant is now typically confronted with a situation in which the analysis cannot be contested by cross-examination because there is no human being involved in it who can be cross-examined. Instead he is confronted with an analysis carried out by a machine whose operation, calibration, servicing etc. he cannot discover without a Court Order. We have seen the detailed, obscure and far-reaching steps taken by the State to prevent a defendant, or any citizen, getting details of the breath analysis apparatus and its functioning other than by Court Order.
All of this must be considered against the background of the finding by this Court that the opportunity for independent analysis is “critical to fair procedures and constitutional justice”, and that “the person accused will be afforded every opportunity to defend himself”, as a matter of constitutional law.
Against that background, I can see no basis for the imposition of an onus on a person charged with a breath specimen offence to adduce a particular reason why he wanted to examine the apparatus and read the documentation. How else can he “contest” the machines analysis? I would have thought that “self evident” as Geoghegan J. put it.
It will be apparent from the contents of this judgment, and especially from the section “Onus of Defendant?” from para. 30ff, that I do not believe that there is an onus on the defendant to demonstrate a particular defence, or a particular shortcoming in the apparatus, before being granted rights of inspection. Indeed, to require either of these things, or anything like them would be a Catch-22 in the sense that a defendant would be required to establish in order to obtain inspection, the very thing that she requires inspection to establish.
36. I believe that the learned trial judge may have been misled in this regard by a failure on the part of the State properly to assess a passage from the judgment of Mr. Justice Geoghegan in Whelan v. Kirby [2005] 2. I.R. 30 at 44, para. 24 which he sets out at para. 5 of his judgment ([2010] IEHC 381). This passage, as the learned trial judge quoted it is as follows:
“Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made”
In the text of the judgment of Geoghegan J., the words quoted are part of the following much longer paragraph:
“The preservation of evidence cases are relevant to one of the main arguments relied on by counsel for the second-named respondent [the DPP] in resisting the applications for judicial review. It is clear from those cases that a court will only be concerned with the preservation of evidence if such evidence could possibly assist the defendant in his or her defence. Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made. Counsel for the [DPP] argues that all the preliminary correspondence and discussions whether with the gardaí, the [Director] or the Medical Bureau are irrelevant because the first-named defendant would have been precluded at any rate from making any order of the kind sought as there was not going to be any evidence put forward as to what might have been determined by an inspection which would have been helpful to the defence”.
(Emphasis added) We have seen, supra, that Geoghegan J. rejected this contention for reasons which are set out immediately below in the following paragraphs of the Report, and are cited above.
But the single sentence relied on by the learned trial judge in this case are part of a paragraph in which counsel for the State was advancing an argument based on an analogy with the preservation of evidence cases. The passage quoted by the learned trial judge is not a finding by the Court but a statement of the case being advanced, on that basis, by the State. The word “therefore” is a reference to the preservation of evidence cases and to the argument which the prosecution were building on them, and not a finding by this Court. It is often risky to rely on a sentence including the word “therefore” without having regard to the material which precedes it, from which the conclusion expressed in it is said to follow logically.
I do not accept that there is a proper analogy with the preservation of evidence cases, which are all civil cases in which the burden of proof is upon the person seeking to prevent a trial for loss of evidence or failure to preserve evidence. There is no doubt whatever that, in such cases, the plaintiff bears the onus of showing at least a real possibility of prejudice arising from the loss or non-preservation. That is quite different from the position in the present case where the appellant was a defendant in a criminal case confronted with a new form of evidential proof which, nonetheless, the law must allow him realistic scope to “contest”.
I turn finally to the last extract from the learned trial judge’s judgment, cited above, about the need to notify the prosecution of an application for inspection, or to apply to the Court itself in the presence of the prosecution. From the emphasis placed on these things it appears that the learned trial judge may not have had his attention drawn to the fact that the accused, through his solicitor, did in fact put the State on notice of his application by an email dated the 25th February (but actually e-mailed on 24th February) to which no reply was forthcoming. It is also, of course, the case that the application was moved on many occasions in late 2008 and early 2009 in a chaotic and “dribs and drabs” manner which was not the fault of the appellant. Furthermore, the appellant through his solicitor actually supplied the prosecution with the legal authority on which he was relying and much delay was apparently caused because those representing the DPP simply did not get around to reading it, and any person who may have read it was unable to attend Court.
The DPP’s representative did not at any time complain, in the District Court, the High Court or here, of inadequate notice of the application in the District Court. The case was adjourned several times because the first prosecutor had not read McGonnell, or was simply absent. The evidence was re-heard because there was a new prosecutor and the case then further adjourned because the new prosecutor had not read McGonnell either. There is no ground for thinking that the State had inadequate notice of the application in the District Court, or was in any way “taken short”.
The right to apply for inspection.
37. Whelan v. Kirby appears to have been the first case which upheld the right of a defendant facing a s.49 charge to apply to the District Court for an order providing for the inspection of the Intoxilyser on his behalf. In that particular case, when the application was made to the learned District judge, the latter replied (See [2005] 2 IR 30 at p.41, para. 16):
“I cannot get involved in this. The law is the law. It is going on far too long”.
This was held in the Supreme Court to amount to a refusal to entertain the application.
It appears that in making use of the phrase “the law is the law” the District Judge was saying in shorthand that the law provided for the use of the Intoxilyser and attributed presumptive correctness to its print out, and that was that. Nonetheless, for the reasons arising from Maher, Whelan, and McGonnell, set out earlier in this judgment, this Court held that there was a right to apply for inspection of the Intoxilyser because the presumption created by the statute was rebuttable. But without such an inspection it could not in “reality” be rebutted.
Apart from that argument, the Director in Whelan v. Kirby questioned the nature of the jurisdiction which would permit an order for inspection to be made. The applicant’s solicitor had, in making the argument in the District Court, said that it was analogous to “Gary Doyle” application. That is, it was an application grounded on an analogy with the form of order mandated in DPP v. Doyle [1994] 2 I.R. 286. Geoghegan J. did not accept this analogy though he observed that the requests for inspection were “based on the exact same constitutional principle”, (see p. 43 - 44, paragraph 22). He held that “there is jurisdiction in the District Court to make any order that would be necessary for the fulfilment of the constitutional obligation to a fair trial and fair procedures”.
38. The right to apply for inspection, declared for the first time in Whelan v. Kirby is firmly grounded on the earlier decision of Maher v. Attorney General [1973] I.R. 140. Speaking of Maher and its consequences, Geoghegan J. said, at pages 42 and 43, para. 21 of the Report of Whelan:
“Originally in relation to prosecutions arising out of specimens of blood or urine under the Road Traffic Act 1968, the equivalent certificate gave rise to an irrebuttable presumption. That provision was held to be unconstitutional by this Court in Maher. The Court held that the administration of justice in a criminal trial was confined by the Constitution to the Courts and judges constituted and appointed in accordance with the provisions thereof and therefore that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges. Once the certificate was conclusive the judicial power of the District judge was infringed and this could not be valid having regard to the Constitution.
It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the Intoximeter cases are for all practical purposes irrebuttable, notwithstanding the statutory provision to the contrary, if there are no circumstances in which an accused can be permitted through an independent expert of his own to investigate the reliability of the apparatus or at the least if it is not generally known in what circumstances (if any) such apparatus can be unreliable”.
(Emphasis added)
In McGonnell, which was a challenge to the constitutionality of the new system of evidential breath tests, the Court made use of the right which had been declared in Whelan v. Kirby in finding the new provisions for evidential breath sampling to be constitutional.
In the present case, in the District Court, the learned Respondent gave no reason whatever for his decision. The only specific recorded submission by the State was entirely ill founded: that the McGonnell case had been superseded. The only comment of the learned Respondent, equally ill founded, was to the effect that another case had “overturned” McGonnell.
One does not know, therefore, on what basis Mr. Cullen’s application was refused or what, in the learned Respondent’s mind, was the law applicable to such applications on the basis of which, presumably, this particular application was refused.
Duty to give reasons.
39. There is uncontradicted evidence in the present case that the learned Respondent gave no reasons for his refusal of the defendant’s application to be given the documents he referred to, and to be permitted to have the intoxilyser machine professionally examined by an expert on his behalf. It is also uncontradicted that this application was first made to him on the basis of the judgment of McKechnie J. in McGonnell. This appears on the face of it to establish a right to make precisely that sort of application and a right to have such an application entertained in accordance with the requirements of natural and constitutional justice, both procedural and substantive. The appellant says that this extends to a duty to give reasons for his refusal. It is uncontradicted that the learned Respondent did no respond at all to an express request to state reasons. He said nothing at all.
It is equally uncontradicted that the learned Respondent stated that McGonnell, “the case relied on by Mr. Cullen” had been “overturned” by a later case. The State had previously submitted that the case had been “superseded”.
40. On the hearing of this appeal it was not contended by the Director that McGonnell had in fact been “overturned” or “superseded”. I have already held, as a matter of law, that neither of these things has taken place.
41. Accordingly, this case presents a somewhat unusual feature amongst the now numerous cases on whether a court or other deciding body is obliged to give reasons for a decision adverse to one of the parties. Not only (on the evidence) did the learned Respondent simply ignore the request for reasons and make no comment whatsoever on it. He did so while he laboured under the unfortunate misapprehension that the case which was the lynch-pin of Mr. Cullen’s application had been “overturned” and no longer represented the law which was binding on the learned District judge. He did not mention the case which had, as he believed, “overturned” McGonnell, though he stated to Mr. Cullen that some of his (Mr. Cullen’s) colleagues would be aware of it. His colleagues could not have been aware of it, for there is no such case. The learned Respondent did not articulate what, in his mind, was the effect of the (non-existent) case which he believed to have “overturned” McGonnell, or what it held. Without knowing this, it appears to me that any attempt to establish by some form of inference the reasons which actually operated on the learned Respondent’s mind is an exercise akin to trying to put the tail on the chalked figure of a donkey while blindfold.
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42. Having noted that peculiar feature of the present case, I now turn to the more general topic of the duty of a court or other deciding body to give reasons for a ruling which is adverse to a party affected by its decision, where that party has (as here) engaged with the decision making process, called evidence, and made submissions.
43. There has been a great deal of jurisprudence on this topic in very recent years in the High Court and in this Court and elsewhere. I would instance O’Mahony v. Ballagh [2002] 2 IR 410, English v. Emory v. Reimbold & Stritch Ltd. [2002] I WLR 2409, Foley v. Murphy [2008] 1 IR 619, Clare Co. Co. v. Harvey Kenny [2009] 1 IR 22, Meadows v. Minister for Justice [2010] 2 IR 701, Flynn v. Medical Council [2012] 3 I.R. 236, Mallak v. Minister for Justice [2012] 3 IR 297. For the purpose of this judgment, however, I will discuss only the cases which appear to me to be directly relevant.
44. In O’Mahony v. Ballagh and the DPP [2002] 2 IR 410 the respondent District Judge failed to address in any way submissions made by counsel for the defendant at the close of the prosecution case. In that context, Murphy J. held at p. 416 that:
“… every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing”.
(Emphasis added)
45. In the present case there was no suggestion in the affidavit evidence or in argument that there were any time constraints upon the learned Respondent which precluded his giving reasons for his decision. The case was adjourned so often that there was ample time to read the case cited and to find any new authority thought to exist, if necessary with the assistance of the judicial researchers.
46. Even before the recent enormous expansion of Irish jurisprudence on this question, which is paralleled by developments in the European Court of Human Rights and in the neighbouring jurisdiction, there was strong authority for a duty by a decision maker to give reasons for his decision. In State [Creedon] v. Criminal Injuries Compensation Tribunal [1988] 1 I.R. 51 the respondent Tribunal was not satisfied that a man who received fatal injuries while trying to stop a driverless van rolling down a hill had received them in the course of an attempt to save life. But it gave no reasons for this conclusion. Finlay C.J. found at p. 54 - 55:
“I feel I should add that for a tribunal of this nature, even though it is not of statutory origin and is set up by an administrative decision by the Government, to reach a conclusion rejecting in full the claim of an applicant before it and not to give any reasons for that rejection is not an acceptable and proper form of procedure”.
(Emphasis added)
Walsh J. and McCarthy J. concurred in this judgment. It can rightly be described as a decision of high authority. Moreover it is a decision of the Supreme Court given almost twenty years before the present case came before the learned respondent in the District Court, so that it can fairly be said that the obligation to give reasons for a decision in the District Court was well established (even before the recent intensive development of the jurisprudence in this area in very recent years), by the cases of Creedon and O’Mahony v. Ballagh, cited above.
47. In O’Donoghue v. An Bord Pleanála [1991] ILRM 750 the Court addressed the question of a duty to give reasons as follows (per Murphy J. at p. 757):
“It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient, first to enable the Courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it has directed its mind adequately to the issue before it”.
(Emphasis added)
I wish to say, though it is surely unnecessary to do so at this stage of the evolution of the jurisprudence, that I agree with that formulation of why, in point of law, it is necessary for a deciding body to give reasons. It is a practical necessity that reasons be stated with sufficient clarity that if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. Secondly, and perhaps more fundamentally, it is an aspect of the requirement that justice must not only be done but be seen to be done that the reasons stated must “satisfy the persons having recourse to the tribunal, that it has directed its mind adequately to the issue before it”.
48. This line of authority has been greatly expanded in recent times. Specifically in relation to the first of the principles enunciated by Murphy J. in the case just cited, in Mallak v. Minister for Justice [2012] 3 IR 297, Fennelly J. stated at p.322, para. 68 - 69:
“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision.
… Several converging legal sources strongly suggest an emerging commonly held view that persons affected by an administrative decision have a right to know the reasons on which they are based, in short to understand them”.
(Emphasis added) I would respectfully consider that the formulation that affected persons “have a right… in short to understand them”, them being the reasons for the decision, is an apt contemporary epitomisation of the second principle enunciated by Murphy J. in O’Mahony v. Ballagh.
I do not think, especially in light of the learned respondent’s unfortunate and erroneous belief that McGonnell had been “overturned”, that a reasonable person present in court could understand the actual reasons on which his decision to reject Mr. Cullen’s application was grounded, or be satisfied that he had adequately directed his mind to the issue before him.
49. In EMI Records Ltd. v. Data Protection Commissioner and Eircom Ltd. [2013] IESC 34, [2014] 1 I.L.R.M 225 at p. 249, para. 6.5 Mr. Justice Clarke concluded:
“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends”.
50. In Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, Mr. Kelly had been dismissed from his employment as a garda. This followed a hearing before a Board of Inquiry. That body recommended his dismissal and the Commissioner of the Garda Síochána accepted this and he was dismissed. He appealed to the Appeal Board. The Board dismissed his appeal without a hearing as it was entitled to do pursuant to statutory regulations, on the basis that the grounds of appeal were “without substance or foundation”.
O’Donnell J. held that both the Board of Inquiry and the Appeal Board had failed to give adequate reasons. He held, at para. 41:
“The only possibility for challenging the decision is by way of judicial review and, in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the Force. I consider that this conclusion follows from an analysis of the Regulations particularly when approached in light of the Common Law principles outlined so clearly in Mallak”.
(Emphasis added) 51. Accordingly, there is recent authority for the proposition, which relates to the first principle enunciated by Murphy J. and quoted above, that the existence either of a right to appeal or of a right to seek judicial review triggers a right to a statement of reasons.
52. Although the above authorities are, in my view, dispositive of the present case, it would risk incompleteness not to have regard to the lively jurisprudence in this area which has been developed in the Courts of the United Kingdom and in the European Courts. In R. (Wheeler) v. Assistant Commissioner of the Metropolitan Police [2008] EWHC 439 (Admin) it was held that a decision maker must address the substantive points made on behalf of the person seeking review. At para. 17 the learned judge continued as follows:
“His reasons need not be elaborate or long and certainly should not be analysed as if there were a judgment of a judge of the Administrative Court, but it should appear from them that he was conscious of the substantial issues raised by the disciplined person, and explain why or on what basis he has concluded that the review should uphold the decision of the panel”.
(Emphasis added) 53. In November, 2012, the Court of Justice of the European Union (CJEU) delivered a judgment in European Union v. Bamba (Case C - 417/11). At para. 49 the Court held:
“[T]he purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, secondly, to enable that judicature to review the legality of the act”.
54. The duty to give reasons, in its present form, is largely a development of the decades since the 1980s. It was, however, well established by the time of the hearing of this case in the District Court. It represents a major change (in my view for the better) in legal sensibilities and in the legal obligations of decision makers who derive their power from the Constitution or the Law.
In 1925, by contrast, it was possible for Sir James O’Connor, a judge of the Superior Courts of Ireland both before and after the revolutionary changes of the year 1922, to write in his preface to the second edition of his monumental work “The Irish Justice of the Peace”, in a section entitled “Advice to District Justices”:
“Be chary of giving reasons for your judgments. If you are not sure of them, give none. A wrong reason destroys respect for a right decision”.
This, be it noted, was specifically written as advice to the new professional District Justices who replaced the lay Justices of the old regime, and who gave such sterling service in the Irish Free State. But it no longer represents the law and I do not think that anyone would wish that it should be reinstated. It is now second nature for a judge to give reasons.
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55. The State’s principal response to the appellant’s contention based on the fact that the learned Respondent gave no reasons for his decision to refuse the appellant’s application, was to object to the point being argued at all.
Ms. Sunniva McDonagh S.C. very strongly argued that this point was not amongst those on which leave to seek judicial review had been granted to the applicant by Mr. Justice Peart on the 15th June, 2009. That leave had not been amended so as to permit the point being argued in the High Court. Ms. McDonagh very emphatically objected, on the hearing of this appeal, to the appellant being permitted to argue the point that the respondent had failed to give reasons for his judgment.
For the appellant, Mr. Micheál O’Higgins S.C. said that the point had been taken in the High Court and was within the grounds on which leave had been granted. These are set out at para. E of the Application. At subparagraph (iii) of that paragraph it was pleaded that the respondent had not properly determined the application “in accordance with the principles of natural and constitutional justice”. At subparagraph (iv) it was pleaded that:
“The hearing conducted by the District judge was unsatisfactory and not in accordance with the principles of natural and constitutional justice”.
Both the applicant and the Director filed written submissions before the High Court hearing. Part VI of the applicant’s document is headed “Failure to give reasons for his decision”. This contains paras. 40 and 41 and pleads that:
“… the failure of the learned respondent to do so [i.e. to give reasons] in this case was a breach of fair procedures. The lack of reasons also goes to the question of rationality or proportionality of the learned judge’s decision”.
The appellant expressly relied in those written submissions on the case of O’Mahony v. Ballagh, cited above, for this proposition. The written submissions from the Director of Public Prosecutions do not address these points at all.
The question of whether there is an obligation to give reasons and whether that obligation has been discharged in any particular case is an aspect of fair procedures. It is desirable that the grounds stated in an application seeking leave to apply for judicial review should be more specific and should identify the specific aspect of fair procedures being relied on. But it seems clear from the written submissions of appellant furnished prior to the High Court hearing that there can have been no misapprehension on the part of the respondent or of the Notice Party that a specific reference to failure to give reasons was intended. This failure is specifically described in those submissions as amounting to a breach of fair procedures. In the circumstances I would not uphold the objection taken.
56. It follows that, in my view, the appellant is entitled to succeed, and to have his conviction quashed, on the basis of the learned Respondent’s failure to give reasons. This was not the appellant’s core complaint: that was about the failure to give him access to the documents he wanted and to permit an examination of the Intoxilyser machine. But the “reasons” point is logically anterior to that point, if only for the reason that it is difficult to see how the decision on the substantive point can be either impugned or justified without being aware of the reasons which actuated the learned Respondent in what he did, perhaps based on his erroneous belief that McGonnell v. The Attorney General [2007] 1 IR 400 had been “overturned”.
Conclusion.
57. I would allow the appeal and quash the decision of the learned Respondent by way of certiorari.
Appendix A.
1. The origin of the modern law of drink driving is contained in s.49 of the Road Traffic Act, 1961.
S.49(1) provided as follows:
“A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle”.
2. Section 29 of the Road Traffic Act, 1968 amended the Section set out above by the insertion in it, after the words “of the vehicle” the following words:
“… or while there is present in his body a quantity of alcohol such that, within three hours after so driving… the concentration of alcohol in his blood will exceed a concentration of 125 milligrams of alcohol per 100 millilitres of blood”.
In the aftermath of the 1968 Act, its main evidential provision was, as we have seen, deemed to be unconstitutional in the case of Maher.
3. In the Road Traffic Act 1978, a new s.49 was inserted “in substitution for” s.49 of the 1961 Act. This preserved the old offence of driving while under the influence of an intoxicant “to such an extent as to be incapable of having proper control of the vehicle”. It also re-enacted the blood or urine offence, minus the objectionable provision for “conclusivity” discussed in the main judgment.
4. The Road Traffic Act, 1994 substituted another form of s.49 for the s.49 of the original Act as substituted by the 1968 Act. This provision was in similar terms to that in the 1978 Act except that the permitted concentration of alcohol in blood was reduced from 125 milligrams to 80 milligrams.
5. By the Road Traffic Act, 2010 s.33, s.49 of the principal Act was repealed.
6. However, s.4 of the same Act re-enacted in substance the former offence as follows:
“4(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of -
(a) 50 milligrams of alcohol per 100 millilitres of blood, or…
67 milligrams of alcohol per 100 millilitres of urine, or…
22 micrograms of alcohol per 100 millilitres of breath...”
This is the current form of the offences originally created by the Acts of 1961 and 1968.Appendix B.
1. The origin of the obligation to provide a portion of a sample taken from him or her under a statutory power for a person charged under s.49 of the principal Act is contained in s.46 of the Road Traffic Act, 1968.
Section 46, subs. 1 and 2 states as follows:
“46.- (1) A person who complies with a requisition under section 30(1)(b), 30(2), 33(1)(b) or 33(2) shall-
(a) be given an opportunity of having an additional specimen of blood taken by a registered medical practitioner of his own choice or of giving an additional specimen of urine to that practitioner, or
(b) if the person so requests, be supplied y the designated registered medical practitioner with an additional specimen of blood taken from that person in accordance with the prescribed procedure immediately after the taking of the specimen in pursuance of the requisition or, where a specimen of urine has been provided, with portion of that specimen”.
2. Section 46 of the Act of the Road Traffic Act, 1968 was repealed by s.5 of the Road Traffic (Amendment) Act, 1978. However, a similar provision was enacted pursuant to s.21 of that same Act.
Section 21, subs. 1 and 2 state as follows;
“21.-(1) Where under this Part a designated registered medical practitioner has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the designated registered medical practitioner shall divide the specimen into two parts, place each part in a container which he shall forthwith seal, and complete the form prescribed for the purposes of this Section.
(2) Where a specimen of blood or urine has been divided into two quantities as required by subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.
3. The Road Traffic Act, 1994 repealed the Road Traffic (Amendment) Act, 1978. Again, however, a similar provision was enacted pursuant to s.18 of the Road Traffic Act, 1994.
Section 18, subs. 1 and 2 state as follows:
“18.-(1) Where under this Part a designated doctor has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the doctor shall divide the specimen into 2 parts, place each part in a container which he shall forthwith seal and complete the form prescribed for the purposes of this section.
(2) Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.
4. In the Road Traffic and Transport Act 2006, pursuant to s.1(e), s.18 of the Act of 1994 was amended by substituting a new subsection 1.
Section 1(e) of the Road Traffic and Transport Act, 2006 provided as follows:
“1.- (1) The Road Traffic Act 1994 is amended-
(e) in section 18, by substituting for subsection (1) the following:
“(1) Where under this Part a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse shall divide the specimen into 2 parts, place each part in a container which he or shall immediately seal and complete the form prescribed for the purposes of this section”.
5. In McGonnell v. A.G. [2007] 1 IR 400 Murray C.J. commented on the foregoing expression of the right of a driver to take a portion of a sample taken from him or her under a statutory power, as follows:
“Such a person has the opportunity of having a portion of a single specimen independent assessed if he so wishes… It is entirely irrelevant whether he should avail of his entitlement or not… It is the opportunity which is critical to fair procedures and constitutional justice”.
6. Section 33I of the Road Traffic Act, 2010 purports to repeal s.18 of the Road Traffic Act, 1994.
S.I. No. 544/2011 - Road Traffic, 2010 (Section 33) (Commencement) Order 2011 brings into force s.33I, excluding any provision as to s.18 of the Road Traffic Act 1994.
However, again a similar provision was enacted pursuant to s.15 of the Act of 2010.
Section 15(1) and (2) state as follows:
“15. - (1) Where under the Chapter a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse, as the case may be, shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.
(2) Where a specimen of blood or urine of a person has been divided into 2 parts under subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers and inform the person that he or she may retain either of the containers”.
See also Road Traffic Act, 2010 (Sections 15 and 17) (Prescribed Forms) Regulations 2011 (S.I. No. 540 of 2011) and
Road Traffic Act, 1994 (Sections 18 and 19) (Prescribed Forms) Regulations 2010, S.I. 434/2010.
Appendix C.
Statutory provisions applicable in 2008 which are cited in the judgment.
Road Traffic Act 1994:
1. Road Traffic Act 1994, Section 13(1)(a)
2. Road Traffic Act 1994: Section 17(2)
3. Road Traffic Act 1994: Section 21(1)
Section 13(1)(a)
Obligation to provide specimen following arrest.
13.- (1) Where a person is arrested under s.49(8) or 50(10) of the Principal Act or section 12(3), or where a person is arrested under section 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 station, at his discretion, do either or both of the following-
(a) require the person to provide by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement.
Section 17(2)
Procedure following provision of breath specimen under section 13.
17
(2) Where the apparatus referred to in section 13(1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49(4) or 50(4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.
Section 21(1)
Provisions regarding certain evidence in proceedings under Road Traffic Acts, 1961 to 1994.
21. - (1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under to and in connection with the supply by him pursuant to section 17(2) of such statement.
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