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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Devlin [1998] IEHC 139 (2nd September, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/139.html Cite as: [1998] IEHC 139 |
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1. This
matter comes before this Court by way of a Case Stated by Judge James
O'Sullivan sitting at Borrisokane District Court, pursuant to Section 2 of the
Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts
(Supplemental Provisions) Act, 1961 on the application in writing of the
Appellant for the opinion of the High Court as to whether the determination of
the above proceedings was erroneous in point of law. I propose to quote the
Case Stated in full so that it may be clear as to what the facts are and the
points in issue and in particular what precise findings were made or not made
by the learned Judge. The Case Stated reads as follows:-
2. The
salient features would appear to be that the Respondent was summonsed to appear
before District Judge O'Sullivan in relation to the charge of drunk driving,
contrary to Section 49(2) and (6)(a) of the Road Traffic Act, 1961 as inserted
by Section 10 of the Road Traffic Act, 1994, as amended by Section 2 of the
Road Traffic Act, 1995. Evidence was given by the prosecuting Garda, Garda
Dillon, in relation to the Respondent's driving and general demeanour which
culminated in the formation of an opinion by the Garda that the Respondent had
consumed an intoxicant to such an extent that he was incapable of having
proper control of a mechanically propelled vehicle in a public place. Garda
Dillon then arrested the Respondent under the provisions of Section 49(8) of
the Road Traffic Act, 1961/1995 for drunken driving.
3. Garda
Dillon conveyed the Respondent to Borrisokane Garda Station arriving there at
2.10 a.m. Apparently on arrival at Borrisokane Garda Station, Garda Dillon
assumed the functions and duties of a member in charge as regards the
Respondent pursuant to the Criminal Justice Act, 1984 (treatment of persons in
custody) Regulations, 1987. Garda Dillon handed the Respondent a Notice of
Rights but he did not respond. Garda Dillon stated in his direct evidence
that he complied with the necessary provisions of the Criminal Justice Act,
1984 (Treatment of Persons in Custody) Regulations, 1987. Under
cross-examination by Counsel for the Respondent, Garda Dillon stated that he
did not read the Notice of Rights to the Respondent but that he did hand it to
the Respondent who did not respond and who did not sign the custody record in
respect of the receipt thereof. When it was put to Garda Dillon that it was
his obligation, as member in charge, to read the Notice of Rights to the
Respondent, Garda Dillon replied that he did not see any point in explaining
the rights to the Respondent because the Respondent would not have understood
due to his intoxicated condition. It was also suggested to Garda Dillon that
there was an inconsistency in his evidence as regards the Respondent's capacity
to understand in that he, Garda Dillon, had accepted when asked by Counsel that
the Respondent had understood the requirement made by the Garda to provide a
sample of blood or, at his option, a specimen of his urine and had understood
the consequences of a failure or refusal on his part to comply with such a
requirement. It was pointed out to Garda Dillon that a short time previously
he had chosen not to inform the Respondent verbally in ordinary language of his
rights as a person in custody under the Custody Regulations because the
Respondent could not understand such rights due to his condition. No
explanation was given for this inconsistency.
4. Secondly,
it was suggested to Garda Dillon that there was a conflict of interest in
relation to the roles which he had performed in that he had acted as arresting
and investigating Garda and also had carried out the duties of the member in
charge. Garda Dillon responded that his obligations would be the same in
regard to the interests of the person in custody. Garda Dillon also agreed
that it might have been practicable to get another Garda to act as member in
charge but he did not do this as this would have delayed the procedure, thereby
infringing the Respondent's rights. I should interject that it is clear from
the general tenor of the Criminal Justice Act, 1984 (Treatment of Persons in
Custody in Garda Siochana Stations) Regulations, 1987 (S.I. No. 119 of 1987)
that there should be no unnecessary delay in dealing with persons in custody
(see Regulation 3); and Regulation 4(3) states that
"as
far as practicable, the member in charge shall not be a member who was involved
in the arrest of a person for the offence in respect of which he is in custody
in the station or in the investigation of that offence".
Thus the need not to have unnecessary delay in dealing with a person in
custody and the practicability of securing the attendance of another Garda at
Borrisokane Garda Station at 2.10 a.m. on the 29th March, 1996 are relevant to
the situation.
5. At
the close of the prosecution case, Counsel for the Respondent sought a
dismissal of the charge on grounds which can be summarised as follows:-
6. Superintendent
Ludlow, appearing on behalf of the Appellant, submitted that the failure of
Garda Dillon to read the Notice of Rights did not invalidate the prosecution
or deny the Respondent his rights under the Regulations. He further submitted
that the offence for which the Respondent was in custody was not comparable to
criminal offences where the member in charge would have decisions to make with
regard to detention and questioning so that a conflict of interest between his
duties as investigating Garda and member in charge might arise. In this
particular type of case, the Respondent did not have any option except to
comply with the requirement made by Garda Dillon under the stipulations in the
Road Traffic Act, and accordingly there was no question of unfair exercise of
discretion by reason of conflicting roles.
7. Thirdly,
Superintendent Ludlow stressed that Regulation 4 in respect of the "member in
charge" stipulates that as far as practicable, the member in charge shall not
be a member who is involved in the arrest of a person for the offence in
respect of which he is in custody in the station or in the investigation of
that offence. The Superintendent stressed that the phrase
"as
far as practicable"
was relevant and it was common case that the nearest available Garda Station
was in Nenagh which was about ten miles away, entailing a round trip of 20
miles in the small hours of the morning.
8. On
the basis of these circumstances the learned District Judge held that there had
been breaches of the Custody Regulations which left him with the discretion to
exclude evidence obtained thereafter. He exercised his discretion to exclude
evidence as to the concentration of the sample provided by the Respondent and
dismissed the charge.
10. When
additional powers of detention were given to the Gardaí under the
Criminal Justice Act, 1984 these were introduced subject to additional
safeguards for those who are being detained and denied their liberty. Some of
these safeguards were embodied in the Criminal Justice Act, 1984 (Treatment of
Persons in Custody in Garda Siochana Stations) Regulations, 1987 and relevant
to this first issue is Regulation 8 which provides:-
11.
There was ample evidence on the basis of which the learned Judge found that the
Garda, in his role as member in charge, was in breach of Regulation 8(1) in
that he failed to inform the Respondent orally of his right to consult a
solicitor and to have notification of his being in custody sent to another
person reasonably named by him. It is conceded by the Appellant that the fact
that Garda Dillon was of the view that there was no point in imparting this
information to the Respondent due to his condition does not absolve him from
this breach. However, the Appellant's contention is that non-compliance with
the Custody Regulations does not of itself entitle the learned Judge to
dismiss a charge of this nature. The Appellant cites Section 7(3) of the
Criminal Justice Act, 1984 and the case law thereon for the proposition that
paragraph 5 of the Case Stated is an explicitly incorrect statement of the law
to be applied in the circumstances.
12. The
Criminal Justice Act, 1984 is the basis for the above regulations. Section 7
deals with regulations regarding treatment of persons in custody and Section
7(3) provides:-
13.
This provision in the Custody Regulations was considered by O'Hanlon J. in
DPP
-v Spratt
- a consultative Case Stated reported at [1995] 1 IR 585 which was cited before
the learned District Judge.
Spratt's
case concerned a charge of refusing to comply with the requirement of the Garda
Doctor in relation to the provision of a sample of blood or urine following
upon an arrest under Section 49 of the Road Traffic Act, 1961 as amended. In
that case, it was not established in evidence before the District Court Judge
that the provisions of Articles 8 and 9 of the Regulations had been complied
with, although there was no affirmative evidence which tended to suggest that
they had not been complied with. While this is undoubtedly a distinguishing
feature from the present case, nevertheless the views expressed by O'Hanlon J.
are of assistance. First, he held that the Regulations made under Section 7 of
the 1984 Act, should be regarded as applicable in relation to persons arrested
under Section 49, subsection (6) of the Road Traffic Act, 1961 as amended. He
went on to consider whether non-compliance with the Regulations and
particularly Article 8 thereof rendered the custody of the accused unlawful
notwithstanding the provisions of Section 7, subsection (3) of the Criminal
Justice Act, 1984 which is set out above. O'Hanlon J. at page 591 said :-
14. O'Hanlon
J. went on to consider the decision of Blayney J. in
Walsh
-v- District Justice O'Buachalla
[1991] 1 IR 56 which concerned a charge brought under Section 49 of
the
Road Traffic Act, 1961 as amended. The applicant sought to have his conviction
quashed in reliance on evidence that just before the relevant blood specimen
was taken in the station, he had asked to see a solicitor but compliance with
his request was deferred until after the specimen had been taken. He had been
given notice of his right to consult his solicitor and had also been given
access to a telephone for this purpose some forty minutes before the arrival of
the Doctor to take the blood specimen, but did not choose to avail of his
rights in the period which intervened before the arrival of the Doctor. It was
held by Blayney J., refusing his application for Judicial Review:-
16. Counsel
for the Appellant submits that applying these principles to the present case it
is clear that the failure on the part of the Garda to comply with the
provisions of Regulation 8 did not, of itself, result in the specimen being
taken. The Respondent was under a duty to provide the specimen and the oral
notification to him of his right to have a solicitor or another person notified
of his presence in the Garda Station would not have affected this obligation.
In these circumstances it is difficult to envisage how the Respondent was
prejudiced by the failure to inform him verbally of his rights. The anxiety of
the District Judge at the breach of the Regulations is understandable but the
wording of the Case Stated, and in particular paragraph 5 thereof, does not
indicate in what way or whether the Respondent was in fact prejudiced by the
suggested breach of the Regulations.
17. Counsel
also pointed out that the Respondent was handed a Notice of Rights which
included the two rights which were required to be brought to his attention by
way of oral information. Perhaps the Respondent may have been more receptive
to the written than to the verbal alerting to his rights but this point is not
influential.
18. Counsel
on behalf of the Respondent agreed that on foot of the decision in
DPP
-v- Spratt
,
the
trial Judge had a discretion in each case as to the effect of proven non
compliance with the Regulations by the member in charge and as to the effect
which this should have on the admissibility of evidence obtained under such a
breach whilst the accused person remained in detention. He stressed that the
trial Judge had the opportunity of hearing the Garda witness and of observing
his demeanour and responses in cross-examination and thus was in a position to
decide whether the interests of justice required him to exclude or admit
evidence obtained after a breach of the Custody Regulations had been
established. He also submitted that the trial Judge must be entitled to
consider the particular nature of the breach of the Custody Regulations and the
explanation offered for this by the member in charge. All this is correct but,
on the basis of the impression made on him by the evidence, the District Judge
must go on to apply the law as set out in Section 7 and the cases cited by
adjudicating as to what impact the non-compliance with the Regulations has had
on the case for the prosecution. I should add that there is no suggestion in
the Case Stated that the District Judge formed the view that he was dealing
with a conscious and deliberate violation of the Respondent's rights or of the
Custody Regulations or that reprehensible or oppressive behaviour on the part
of the Garda tainted the entire prosecution case. Accordingly, on this issue,
in view of the words of the statute and the statements of O'Hanlon J. and
Blayney J. in respect of the case law, it seems to me that there was no actual
adjudication on the impact of the breach of the regulations on the
admissibility of the evidence subsequently obtained against the Accused and
that, accordingly, the learned District Judge was wrong in dismissing the
charge on this basis. I should add that it would be for the District Judge to
make such findings as are appropriate in the light of the guidelines and quoted
statements as to the law and then to come to his conclusion in the light of his
findings made in accordance with law.
19. The
question suggests three separate roles of arresting, investigating Garda and
member in charge. It is quite normal for a Garda who investigates a
drunk-driving offence to effect an arrest under Section 49(8) of the relevant
Act. The distinction in role would appear to be between the role of the
investigating and arresting Officer and the role of member in charge. I infer
from the Case Stated that there was no other member of the Garda Siochana
available in Borrisokane Garda Station and that contacting a Garda in Nenagh
Garda Station, some ten miles away, and requesting this Garda to come to
Borrisokane Garda Station to carry out the role of member in charge would have
entailed a delay involving further deprivation of liberty on the part of the
Respondent. While the wording of the Statute and Regulations are of
importance, nevertheless the Court can take into consideration the situation in
rural Ireland where there are still Garda Stations with one or two
Gardaí. The local Garda Station is one of the great institutions of the
Irish countryside and is a strong influence in preventing rural crime and
breaches of the peace. A local Garda knows and is known by the community and
by advice and by presence in the village and the surrounding countryside
influences support for the rule of law.
21. Counsel
for the Appellant stresses the phrase "
as
far as practicable
"
and says that this indicates that a Garda is not prohibited from acting as both
arresting and investigating member and as member in charge but should not do so
if it is practicable to have another member perform the duties of the member in
charge. Regulation 8 requires that the member in charge shall, without delay,
give certain information and carry out other duties in relation to the person
detained. Counsel for the Appellant submits that it would have been
inappropriate and impracticable in view of the time constraints for Garda
Dillon to delay the process in order to contact another Garda who would have
been on duty in Nenagh, some ten miles away and presumably with other duties to
attend to in that town. Counsel for the Respondent submits that Regulation
4(3) sets out an important demarcation between two distinct roles so as to
ensure that the member of the Gardaí acting as member in charge is not
compromised in his role as guarantor of the rights of accused persons in
custody by active participation in the investigation. He further submits that
it was practicable to obtain another Garda to act as member in charge and that
there was a failure to obtain the assistance of another Garda to act as member
in charge.
22.
Consideration should have to be given to the effect of Garda Dillon assuming
the role of member in charge in the matter as well as being the investigating
Garda and as to whether the Respondent was in any way prejudiced thereby.
There was no adjudication by the District Judge as to whether any prejudice
stemmed from this assumption of both roles. Paragraph 5 indicates a finding
that there was a breach of the Regulations but does not go on to indicate any
findings with regard to prejudice caused thereby nor does the need for
expedition of processing of a person in detention seem to have been taken into
account in considering the practicability of obtaining another Garda to act as
member in charge in the small hours of the morning in Borrisokane Garda Station.
23. Counsel
for the Appellant correctly submits that the member in charge has a regulatory
function only and in the case of detention for drunk-driving the member in
charge's role can be distinguished from that of the member in charge where an
arrest is followed by a detention under Section 4 when the member in charge is
required to exercise a separate discretion as to whether the detention is
required. In a prosecution being brought under Section 49 of the Road Traffic
Act, the accused person, having been arrested under that section, is required
to attend at the Garda Station for the purpose of the provision of a specimen,
and it is not up to the member in charge to decide whether or not this
detention is necessary.
24. While
it is clear from paragraph 3 of the Case Stated that Counsel for the Respondent
did submit that the sample obtained by Garda Dillon in the course of his
investigation of the alleged offence had been obtained as a direct result of a
breach of the Custody Regulations and that there was a clear causal connection
between the breach and the obtaining of evidence against the Respondent, there
does not seem to be implicit or explicit statements in the Case Stated which
would indicate that the learned Judge did make findings on and adjudicate about
matters of prejudice on the guidelines suggested by the cases cited.
Accordingly, on the precise wording of the Case Stated before me, in the
absence of further findings with regard to prejudicial matters arising out of
the dual roles of Garda Dillon, the second question should be answered in the
negative. Again, this is a narrow decision on the specific question asked. I
add the proviso that it would be for the learned Judge to make findings on the
evidence in accordance with the statute, the regulations thereunder and the
guidelines in the cases cited.
25. In
the light of these findings I will hear Counsel as to the precise nature of the
Order to be made.