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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. Clark [2001] IEHC 138 (31st May, 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/138.html Cite as: [2001] IEHC 138 |
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1. This
case arises from a case stated by Judge Maughan of the District Court on the
25th of October, 2000, wherein the question was posed as to whether Judge
Maughan was correct in law, in dismissing the charges brought against the
Defendant under Section 49 of the Road Traffic Act on the ground that he found
that the custody records mis-described the offence in respect of which the
Respondent had been arrested and taken into custody.
2. The
statutory provisions relating to the allegations of the Garda Siochana to
record matters in the custody record are set out in Statutory Instrument No.
119 of 1987, being the Criminal Justice Act, 1984 (Treatment of Persons in
Custody in Garda Stations) Regulations 1987. In that regulation the relevant
paragraph is No. 6 which read as follows:-
4. The
other matters in that section do not relate to the present case. The facts
were in this case as appears in the case stated:-
5. This
was all given in evidence and at the conclusion of the Appellant’s case
Mr. Kelly on behalf of the Respondent submitted
inter
alia
that Garda Doyle had recorded the offence in respect of which the Respondent
had been detained as Section 49 subsection 8 of the Road Traffic Act 1961 to
1994 and that that subsection only gave power of arrest and did not describe
the offence in respect of which the Respondent had been arrested. Sergeant
McGuinness pointed out that the Respondent had been arrested under Section 49
subsection 8 of the Road Traffic Act 1961 to 1994 for offences contrary to
Section 49 subsection 2 or 49 subsection 3 of the Road Traffic Acts 1961 to 1994.
6. It
is submitted by the Applicant that the reference in the custody record Section
49 of the Road Traffic Acts 1961 to 1994 was a sufficient description of the
offence for which the Respondent had been arrested. Section 49 subsection 8 of
the Road Traffic Act states as follows:-
7.
No reference was made in the case stated to Section 8 of the regulations as to
whether or not they had been complied with but having regard to these
circumstances. I have presumed they were complied with and therefore a member
in charge had told the Respondent in ordinary language the offence for which he
was being detained. It was submitted on behalf of the Applicant that the
descriptive reference in the custody record of Section 49 subsection 8 of the
Road Traffic Act was sufficient to comply with the requirements of Section 7
paragraph C namely the nature of the offence or other matter in respect of
which the accused was arrested. I accept that the reference in the custody
record of Section 49 subsection 8 of the Road Traffic Act 1961 was sufficient
to convey to the attention of the accused the nature of the offence or other
matters in respect of which he had been arrested and therefore complied with
the requirements of the regulations.
8. However
that is not the end of the matter. Section 7 of the Criminal Justice Act 1984
also provides that a failure on the part of any member of the Garda Siochana to
observe any provisions of the regulations shall not of itself render that
person liable for criminal or civil proceedings or of itself effect the
lawfulness of the custody of any detained person or the admissibility of
evidence of any statement made by him.
9. Therefore
it is quite clear that even if the insertion of Section 49 subsection 8 as
opposed to Section 49 subsection 2 was a failure to observe the provision of
the regulations, it is equally clear from the statute that in itself is not a
fatal error but requires the Judge to exercise his discretion as to whether or
not such a failure should render unlawful the custody of the obtained person or
the admissibility of any evidence of any statement made by him.
10. In
my view having regard to the terms of the case stated the learned Judge did not
exercise his discretion in this matter but appears to have taken it that he had
no option but to dismiss the case.
11. The
learned Trial Judge had exercised his discretion then he should have had in
mind the cases of the
DPP -v- Spratt
I.L.R.M. 1995 volume 2 at p. 123 wherein Mr. Justice O’Hanlon quoting
with approval the case of
Walsh
-v- O’Buachalla
1991 I.R. p. 56 applies the same principles and in that case Mr. Justice
Blayney refusing an application for Judicial Review stated and I quote:-
12. Having
regard in my mind the Judge did not exercise his discretion in determining this
case therefore for both those reasons I find he was not correct in law in
dismissing the said charge.