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1. This matter comes before the Court by way of case stated by Judge James O’Connor of the District Court in Bandon in the County of Cork pursuant to the Provisions of Section 52 of the Courts (Supplemental Provisions) Act, 1961 - 1986.

2. A number of summonses against the Defendant were before the District Judge on the 16th day of June, 2000 arising out of road traffic offences alleged to have occurred on the 4th of November, 1999 in a public place at Ballylangley, Bandon, County Cork. The offences arose out of the user by the Defendant of a motorbike at the said location and those summonses which related to no insurance, failing to produce insurance and failing to have a driving licence, to produce same, or to display tax were admitted by the Defendant. There were two other summonses, firstly, in relation to the alleged failure on the part of the Defendant to provide a specimen of breath when requested to do so by Garda Nyhan contrary to Section 12 of the Road Traffic Act 1994, and a further summons alleging that the Defendant, contrary to Section 13 of the same Act, refused to permit a designated doctor to take from him either a specimen of blood or urine. These summonses were contested.

3. The facts may be briefly stated. At about 4.05 p.m. on the 4th of November, 1999 Garda Nyhan was operating a Garda checkpoint at Ballylangley in Bandon when he saw a motorcycle approach the checkpoint. He observed that the motorbike was endeavouring to turn away from the checkpoint but it did, however, respond to a command to stop. The motorbike was driven by the Defendant and had a pillion passenger. The Defendant turned off the ignition. Garda Nyhan clearly felt that the behaviour of the motorbike before stopping was suspicious and indicated to the Defendant that he proposed to search him under Section 23 of the Misuse of Drugs Act 1977. A similar request was made of the pillion passenger, but both refused to be searched at the roadside. The Defendant was wearing a full face helmet. Both the Defendant and the pillion passenger were then required to go to Bandon Garda Station under the powers conferred by Section 23 of the Misuse of Drugs Act 1977 and both got into the patrol car. It is not clear from the case stated whether or not the patrol car moved off. However, within a very short period of time, certainly no more than a few minutes of the initial stopping at the checkpoint, Grad Nyhan got a smell of intoxicating liquor from the Defendant and asked him to take off his helmet which the Defendant refused to do. Garda Nyhan then asked the Defendant to step outside the car and to provide a specimen of his breath. The Defendant having stepped outside the car refused to comply on more than one occasion. The Defendant was then arrested under Section 12(3) of the Road Traffic Act 1994 and was conveyed to Bandon Garda Station. This arrest is stated to have taken place at Ballylangley in a public place, although, as already mentioned, it is not clear whether the location was different from the Garda checkpoint. Thereafter in the Garda Station a demand was made pursuant to Section 13(1) of the Road Traffic Act 1994 requiring the provision of a blood or urine sample. Garda Nyhan informed the Court that the Defendant refused also to comply with this request.

4. The Defendant was also searched pursuant to Section 23 of the Misuse of Drugs Act 1977, but I should at once make clear that no point is being raised in the instant case that any issue of “an arrest upon an arrest” is being advanced on behalf of the Defendant. The relevance of the Defendant’s detention in the Garda car is relied upon by the Defendant to argue only that, at the time Garda Nyhan formed his opinion and made the request under Section 12 of the 1994 Act, the Defendant was at that time no longer “in charge” of a mechanically propelled vehicle as required by Section 12 of the Road Traffic Act 1994.

5. While the opinion of the High Court was sought on three questions, both sides in argument before this Court agreed that in reality only one question arose as follows:-

6. Mr. O’Carroll on behalf of the Defendant relies essentially on two cases in support of his contention that, on the particular facts of this case, the Defendant could not be regarded as having been in charge of the motorbike in the manner required by the Section.

7. Later he stated:-

8. Mr. O’Carroll submits that “all the ingredients” were not present in the instant case, or, at least were not present at the same time. At the moment the Garda formed his opinion, he says, the Defendant was no longer in charge of his motorbike. In fact the Defendant was no longer in control of anything because he himself was then under the control of the Gardai who had placed him in the Garda car for the purpose of taking him to Bandon Garda Station. Accordingly, he submits, the nexus under the Act was broken.

9. He relied on the following passage in DPP -v- Joyce (1985) ILRM 206 where Hederman J, in delivering the Judgment of the Court stated (at p. 209):-

10. Mr. O’Carroll submits that in the instant case the evidence established that the Defendant at the time when the opinion was formed and the request made, was no longer in charge of his motorbike, not because he had relinquished charge or handed the charge to some other party, but because the Gardai had in effect detained him in such a way that it was quite impossible for him to be in charge of or to drive the motorbike at the time which the Supreme Court in DPP -v- Joyce had stated to be the material time.

11. On behalf of the Director, Mr. Collins submits that the facts in DPP -v- Joyce were significantly different from those of the instant case. In Joyce the allegation was that an offence had been committed in relation to the car approximately 30 minutes before the time when the Gardai approached the Defendant in a private yard. That was the first occasion when the Gardai noted the smell of liquor from the Defendant’s breath and that he was unsteady on his feet. Further, the ‘public place’ requirement, if indeed at the time of opinion and requisition it is to be regarded as a requirement, was not fulfilled in that case whereas it clearly was fulfilled in the instant case.

12. The issue therefore essentially turns on the proper interpretation to be given to Section 12(1) of the Road Traffic Act 1994.

13. It is not difficult to understand the legislative purpose and intent. That can only be that persons should not be in charge of mechanically propelled vehicles in a public place if they have consumed more than a permitted amount of alcohol. The offence is to be so in charge in such circumstances.

14. I can see nothing in the Section itself which requires that the member of the Garda Siochana must also make his requirement of the person in charge “in a public place” or that the arrest be in a public place.

15. As pointed out by O’Flaherty J, in DPP -v- Forbes (1994) 2 IR 542 (at p. 548):-

16. Simple logic dictates that there must be a sequential dimension to the Section. The requisition comes near the end of the sequence. The Section does not state that the requisition must be made in the identical public place or at any other place from which the Garda is not otherwise precluded from entering.

17. The first requirement is that there be a person in charge of a mechanically propelled vehicle in a public place. The formation of the opinion is the second step in the sequence. The arrest is the last step.

18. The only question is whether or not the sequences envisaged by the Section were broken by the placing of the Defendant in the Garda car by way of detention under the Misuse of Drugs Act. Firstly, it seems to me that Section 12(1), where it refers to “a person in charge of a mechanically propelled vehicle” must be taken as meaning also a “a person who has been in charge”, provided there is a close temporal and geographic connection between that event and the other sequential requirements. To hold otherwise would make nonsense of the Section. For example, it would be impossible to convict under the Section in a situation where a motorist took to his heels when stopped, leaving the vehicle and the scene before the Gardai could form any opinion or make any requisition. When apprehended, he would arguably no longer be “in charge”. In Woodage -v- Jones (1974) 60 CAR p. 26 the Defendant drove his car on to the forecourt of a public garage and, when he learned that the police were to be summoned, got out of his car and left it unlocked and walked off and was stopped by constables in uniform some half mile from where he had left his car. It was held by the Court that on such facts the Defendant could still be regarded as being in charge of his car and there was no justification for concluding that he had abandoned it.

19. The statutory ‘in charge’ requirement was analysed in DPP -v- Watkins , (1989) 1 All ER 1126 where Taylor LJ, stated (at p. 1129):-

20. TTaylor LJ went on to state at (p. 1132):-

21. IIn considering the circumstances to be taken into account, Taylor LJ, stated (at p. 1133):-

22. FFinally, and significantly, he stated as follows at p. 1134:-

23. TThis passage, including the last sentence, seems to me a perfectly sensible statement of the law. I do not see how the fact that the Gardai were concerned at the possibility of the commission of some other offence in respect of which they took appropriate steps by detaining the Defendant can be regarded as something which breaks the “close connection” between the Defendant and the immediately pre-occuring driving by him of the motor cycle in the same, or virtually the same, public place.

24. TThis is not a case where there was any lengthy interval of time, nor any substantial removal of the Defendant from the scene of the roadblock, if indeed such a removal had even commenced. To hold otherwise would mean that the Gardai would, in effect, have to complete enquiries into all other possible offences at the roadside with an uncooperative suspect before he could be detained under the Misuse of Drugs Act. In my view, the Defendant had been and was “in charge” of his motorbike in a public place and the mere placing of him in the Garda patrol car did not break that requisite degree of connectedness envisaged by the Section. The Gardai at all times were acting properly in the execution of their duties.

25. II find myself in complete agreement with the sentiment expressed by O’Flaherty J in DPP -v- Cormack (unreported Judgment of the Supreme Court delivered on the 22nd January, 1999) when, in relation to a prosecution under Section 49 of the Road Traffic Act 1961 he stated:-

26. IIt is probably true to say that no area of law has so highlighted the ingenuity of Irish lawyers as that developed in respect of cases under the Road Traffic Acts, but I have come to the firm conclusion that the requirements of Section 12 do not preclude the Gardai from pursuing other parallel enquiries arising at the same time, or that such parallel enquiries should, on facts such as in the instant case, compel the Court to hold that the close degree of connectedness required under the Section has been broken. I would therefore answer the questions raised in the case stated as follows:-