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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Director of Public Prosecutions -v- Byrne [2014] IEHC 394 (31 July 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H394.html Cite as: [2014] IEHC 394 |
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Judgment Title: Director of Public Prosecutions -v- Byrne Neutral Citation: [2014] IEHC 394 High Court Record Number: 2013 2140 SS Date of Delivery: 31/07/2014 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 394 THE HIGH COURT [2013 No. 2140 SS] IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA NIALL McDONNELL) Prosecutor -AND-
GARRET BYRNE Accused JUDGMENT delivered by Mr Justice Hedigan on the 31st of July 2014 1. This is a case stated by Judge Anne Watkin, a Judge of the District Court, pursuant to s.2 of the Summary Jurisdiction Act 1857, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961, and the Rules of the District Court. The learned judge states as follows:
Contrary to Section 12(1)(b, (3)(b) and (4) of the Road Traffic Act, 2010, as amended by Section 9(d) of the Road Traffic (No. 2) Act, 2011 Mr. Padraig Mawe, Solicitor, of the Office of the Chief Prosecution Solicitor, appeared on behalf of the Prosecution. Michael Finucane of Michael Finucane Solicitors, Kreston House, Arran Court, Arran Quay, Dublin 7, represented the Accused.
(3) Garda McDonnell gave evidence that on 15th November 2012 he was on active patrol in an unmarked patrol car. He stated that he was with Garda Derek Johnson and that he was requested to provide assistance in relation to a vehicle on the Causeway, Dublin 5. While assisting in respect of that vehicle, a grey BMW came from the beach at the roundabout direction. Garda McDonnell stated that as the vehicle passed by, he noticed the interior light was on. There were two occupants in the car and the driver he now knows to be the accused. Garda McDonnell stated that he was suspicious of the vehicle and turned the patrol car around in order to follow the BMW towards the James Larkin Road. He indicated that he did not activate lights and sirens at first as it was not his immediate intention to stop the vehicle. He noted that as the BMW approached the junction, the lights were red. The BMW slowed in speed and was taking up two lanes of traffic as it entered into the right lane of the road. The vehicle came to a sharp stop approximately 25 to 30 yards from the stop line at the junction, which is a public place. He stated that he was concerned about the driving of this vehicle and as it came to a stop, he put on the blue lights of the patrol car. He stated that the time at this point was approximately 21.55 hours.
Garda McDonnell stated that, as he approached the vehicle and announced himself as a member of An Garda Síochána, he immediately got a smell of what he believed to be cannabis. He said the smell was extremely strong and it was coming from the rear of the vehicle. He stated that he approached the driver's door and the driver lowered his window. The driver (the accused) gave his name and date of birth. Garda McDonnell noted these in his notebook and as he was doing so, he could smell cannabis emanating from the vehicle. He described the accused as "very chatty" and said that he appeared to be disoriented.
Garda McDonnell stated that he told the accused that he was going to search him under the provisions of Section 23 of the Misuse of Drugs Act (as amended.) He asked the accused to get out of the vehicle to facilitate this search, which was negative. He stated that the accused continued to talk continuously, could not stand still and found it hard to stand in one spot. At other times, he appeared to be confused.
Garda McDonnell stated in evidence that he formed an opinion at this point that the accused was under the influence of an intoxicant, namely, a controlled drug. However, he stated that he did not arrest the accused at this point but instead asked him if he had taken drugs on the evening in question. In response, the accused replied that he was on "legal medication" for certain medical conditions. Garda McDonnell stated that he asked the accused if he was permitted to drive while taking these medications to which the accused replied 'yes'. At this point, other Gardaí arrived at the scene to assist Garda McDonnell.
Garda McDonnell stated in evidence that he informed the passenger of the vehicle that he intended to search him for drugs also, under the provisions of Section 23 of the Misuse of Drugs Act (as amended.) The result of the search of the passenger was also negative. At this point, Garda McDonnell informed the accused that he (Garda McDonnell) intended to search the car under the provisions of Section 23 of the Misuse of Drugs Act, as he believed that drugs were in the car. The result of this search was negative. Garda McDonnell then stated, on the basis that there was still a very strong smell of cannabis coming from the car, he requested a dog unit to attend and search the vehicle also. He said he believed a dog unit was close by and that the dog handler was a Garda Kathleen Bartley. A period of time then elapsed prior to the arrival of the dog unit. Garda McDonnell stated that the dog unit informed him the search of the vehicle was negative.
When the search was completed, Garda McDonnell stated that he informed the accused he had formed the opinion that he (the accused) was under the influence of an intoxicant. He said that the approximate time was 22.10 hours. Garda McDonnell informed the accused that he was arresting him under Section 4(8) of the Road Traffic Act 2010 for an alleged offence under Section 4 of the same Act. Garda McDonnell stated that he explained to the accused in ordinary language the reason for the arrest and that he cautioned him in the usual manner.
The accused was brought to Raheny Garda Station where he arrived at 22.15 hours. The personal details of the accused were entered into the custody record by a Garda McCoy. In the interim, a doctor had been called to attend the Garda Station to make a requirement under Section 12(1)(b) of the Road Traffic Act 2010 for the purpose of taking a specimen of blood or urine. Garda McDonnell indicated that, upon the arrival of Dr. Fakih, a lawful requirement was made of the accused by Garda McDonnell to permit the doctor to take from him a sample of blood or urine. Garda McDonnell indicated that the accused offered to provide a urine sample and stated that he was "dying to go to the toilet". At this point, the doctor opened a jug and marked the amount required.
At 22.46 hours, Garda McDonnell walked the short distance to the toilet where the accused made what was described as a "little attempt" to pass urine. Garda McDonnell stated that the behaviour of the accused was similar to his behaviour at the initial stop. At 23.04 hours the accused was taken to the toilet again to attempt to get a sample. Again, he made a "little attempt" to provide a sample. Within a short time of entering the bathroom, the accused declared he could not provide a sample. Garda McDonnell stated that he brought the accused back to the interview room, where he repeated the requirement in plain English and told him of the consequences of failing to provide a sample. The accused informed the Garda that he could not provide urine.
The accused was then requested to provide a sample of blood. He refused immediately. The accused was reminded of the consequences of failure or refusal but he informed Garda McDonnell that he could not provide urine and that he was afraid of needles. He stated further that "no one was coming near him" with needles. At this point, Garda McDonnell informed the accused that he had committed an offence under Section 12 of the Road Traffic Act and that he was to be charged with this offence. The accused was therein placed in a cell at 23.12 hours and later charged in the presence of Garda McDonnell by Sergeant Beere. (5) Under cross-examination by the solicitor for the accused, Garda McDonnell confirmed that the accused was not under arrest during the search of his person at the roadside nor immediately after it had been concluded. Garda McDonnell stated, however, that although not under arrest, the accused was not free to leave and would have been prevented by Gardaí if he had tried to do so. (6) On further cross-examination Garda McDonnell could not furnish evidence to the Court as to how long it took for the dog handler (Garda Bartley) to arrive. It was put to Garda McDonnell that Garda Bartley (who did not give evidence) had made a statement indicating she was "working late patrolling the city centre" when she got a call for assistance. Garda McDonnell agreed that the location of the search was some distance from the city centre and that the accused was not ultimately arrested until after the dog handler had arrived and the dog completed the search of the accused's car. When asked how long the entire search took, the Garda estimated that it took about 15 minutes. Garda McDonnell confirmed that, following the search of the accused himself, he was required to wait at the scene pending the search of the passenger and the vehicle, albeit that this was not articulated specifically to the accused. Garda McDonnell stated that, following completion of the searches of the passenger and the vehicle, he informed the accused that he intended to arrest him under the provisions of Section 4(8) of the Road Traffic Act. (7) The Prosecution's second witness was Dr. Fakih who gave evidence about his dealings with the accused and Garda McDonnell on the night. Dr. Fakih indicated that at 22.45 hours on the 15th of November 2012 he was introduced as a designated doctor by Garda McDonnell to the accused. He indicated that Garda McDonnell made a requirement of the accused to permit him under Section 12(1)(b) of the Road Traffic Act 201 0 to take from the accused a specimen of blood or at the option of the accused a specimen of urine. He stated that he was present when Garda McDonnell cautioned the accused in respect of a failure or refusal to comply with the requirement and outlined the penalties in respect of both. Dr. Fakih stated that the accused opted to provide a specimen of urine and then was furnished with a sealed jug provided by the Medical Bureau of Road Safety. Dr. Fakih stated that at 22.46 the accused made a very brief (less than one minute) attempt at providing a urine specimen without any success. He stated that the accused informed him that he had recently had abdominal surgery and showed him a midline scar resulting from the surgery. On entering the examination room the accused had stated he was "dying to go to the toilet". At 23.04 hours the accused made a second, very brief attempt to provide urine without any success. At 23.05 hours Garda McDonnell repeated the requirement of Mr. Byrne to provide a specimen of blood. At this point the accused refused to do so. Dr. Fakih noted that the accused appeared drowsy and disorientated. He noted that his eyes were blurry and his pupils were constricted. He noted that his gait was unsteady and his speech was also incoherent. Dr. Fakih noted that he could not detect any alcohol on the breath of the accused and his eyes did not appear blood shot. In view of the observations Dr. Fakih indicated that he formed the opinion that the accused was under the influence of an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place. (8) No cross examination of Dr. Fakih took place. Mr. Finucane reserved his position pending a ruling being given on the lawfulness of the arrest and subsequent detention. At this point in the case, an application for a ruling on the issue of the arrest was made by Mr. Finucane on behalf of the accused. He submitted that the detention of the accused at the roadside was unlawful and tainted the legality of the subsequent arrest because no power existed that allowed the Garda to detain the accused while carrying out the search of another person. He submitted also that no statutory power was invoked by the Garda to detain the accused at the roadside nor was the accused informed of any detention. It was submitted on behalf of the accused that, in view of the evidence given by Garda McDonnell, the accused was neither free to go nor under arrest. He was in the unlawful limbo of a 'halfway house' between liberty and detention. This was, it was submitted, entirely unlawful, as the essential elements of a valid arrest were absent and the subsequent arrest of the accused under Section 4(8) of the Road Traffic Act was also unlawful.
On behalf of the Prosecution, Mr. Mawe submitted the Garda had carried out a valid search under the Misuse of Drugs Acts and that the power had been correctly and lawfully invoked.. "Garda McDonnell in evidence, stated that the search was conducted under Section 23 and that the accused co operated. Garda confirmed that the accused never attempted to leave the scene but that if he did try to leave, he would have been required to remain at the scene. Once the search was complete, it was submitted that the Garda had made a valid arrest under Section 4 of the Road Traffic Act 2010.
After consideration of the oral arguments made by and on behalf of the parties I directed the preparation of written legal submissions. I adjourned the matter to 24th May 2013 for the exchange of written legal submissions and consideration of my decision.
I say that I invited further oral argument from the parties on the relevant day and consideration was given to the provisions of Section 23 of the Misuse of Drugs Act. I say that, having considered the oral and written submissions made by each of the parties, I concluded that the detention of the accused at the roadside prior to his arrest was lawful under Section 23 (1). In relation to the vehicle I found the search of same and the continued detention of the accused for this purpose was lawful under Section 23 (1B) (c). In relation to the search of the passenger and continued detention of the accused at that time, I was less clear. However after submissions from both the defence and prosecution I found that the search of the passenger and continued detention of the accused was part of and parcel of the one investigation and incident and was lawful and therefore the ensuing arrest of the accused by Garda McDonnell was also lawful. However, at the request of the defence, I agreed to state a case for the consideration of the High Court.
In view of the issues arising in the case, the opinion of the High Court is sought in respect of the following questions: i. Was the detention at the roadside by Garda McDonnell of the accused lawful and permissible under the terms of s.23 of the Misuse of Drugs Act? ii. Was the subsequent arrest of the accused under Section 4 (8) of the Road Traffic Act 2010 a lawful arrest? iii. If the answer to either (i) or (ii) is "no", am I required to exclude the evidence of the making of a requirement under Section 12 (1) (b) of the Road Traffic Act 2010 and any evidence of a subsequent failure by the accused to comply with the requirement?" Counsel for the accused submitted that there were serious issues surrounding the arrest and detention of the accused in that after the search of his person was concluded, the investigating Garda went on to search the passenger of the car and the car itself, however, in all this time, nothing was communicated to the accused either formally or informally, regarding his status. Garda McDonnell accepted under cross-examination that he had formed an opinion regarding the accused at this time, albeit a private thought, and stated that, accordingly, the accused was not free to leave the scene and he would have prevented the accused from leaving the scene had he attempted to do so. Garda McDonnell further accepted that while the accused was detained by the roadside and under 'de facto' arrest, he never actually conveyed this fact to the accused, or invoked any statutory power, and therefore, counsel for the accused contended, his subsequent arrest under s.4 (8) of the Road Traffic Act, 2010, was unlawful. Furthermore, it was argued, while Garda McDonnell was waiting for the back-up Gardaí to arrive, the accused remained at the roadside still in this limbo half-way house regarding his status. 2.1 Counsel for the accused further contended that Garda McDonnell should have informed the accused of his impending arrest at the point when he had 'formed an opinion' regarding the accused. Once the search of the accused had completed, one of the following three things should have occurred. one, the accused should have been free to leave, thus having his liberty restored, Two, a further statutory detention power should have been invoked, which should have been communicated to the accused, or three, the accused should have been arrested for an offence, informed of the reason for same and his liberty thus removed at that moment. Counsel for the accused submitted that there was no practical impediment on the Garda's part to informing the accused of his arrest and detention, instead of detaining him at the roadside in this limbo, half-way house scenario. 3. The submissions of the prosecutor. 3.1 Counsel for the prosecution accepted that while an argument could be made that, once the accused had stated that he was taking legal medication and was permitted to drive whilst on such medication, the accused should have been arrested then. But this does not take into account the fluidity of the investigation. Counsel for the prosecution submitted that the Gardaí are fully entitled to investigate the possible commitment of an offence and argued that although a half-way house situation did probably occur here, it was created by legislation. The legislation doesn't provide for the detention of an accused when their vehicle is being searched, but an accused can be required to stay with the vehicle. Practical reality has to be given to the fluidity of the situation and if one looks at the language in s.23 (1)(a) of the Act, the language is large enough to include the vehicle. On this point, counsel for the prosecution argued that if a member of An Garda Síochána thinks a person is in possession of a drug, even if it's in his vehicle, the Garda can search that person and detain them while a search of their vehicle is being carried out. Counsel for the prosecution stated that this was the approach Judge Watkin took in the District Court. A search of a driver, car and passenger, as in this case, is all part and parcel of the one search and, therefore, if there was a detention, it was a legal detention. 4. Decision. 4.1 Section 23 (1) states as follows:
(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for making the search, (b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found (and any substance, article or other thing on or in the vehicle, vessel or aircraft), and for the purpose of carrying out the search may, if he thinks fit, require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving it, or (c) examine (by opening or otherwise) and seize and detain anything found in the course of a search under this section which with such cause appears to him to be something which might be required as evidence in proceedings for an offence under this Act. (1A) Where a member of the Garda Síochána decides to search a person under this section, he may require the person to accompany him to a Garda Station for the purpose of being so searched at that station. (1B) Where a member of the Garda Sfochana decides to search a vehicle, vessel or aircraft under this section he may as regards the person who appears to him to be the owner or in control or charge for the time being of the vehicle, vessel or aircraft make any one or more or all of the following requirements: (a) require such person, pending the commencement of the search, not to remove from the vehicle, vessel or aircraft, as may be appropriate, any substance, article or other thing, (b) in case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place which he considers suitable for such search and which is specified by him, (c) require the person to be in or on or to accompany the vehicle, vessel or aircraft, as may be appropriate, for so long as the requirement under this paragraph remains in force. (1C) Where there is a failure to comply with a requirement made under this section the following provisions shall apply- (a) in case the requirement was made under subsection (1A) of this section, the member of the Garda Síochána concerned may arrest without warrant the person of whom the requirement was made, and (b) in case the requirement is a requirement mentioned in paragraph (b) of subsection (1B) of this section, such member may take the vehicle concerned, or cause it to be taken, to a place which he considers suitable for a search under this section. (1D) Where a requirement is made of a person under this section- (a) in case the requirement is a requirement mentioned in paragraph (c) of subsection (1B) of this section, if at any time while the requirement is in force the person of whom it was made is neither in nor on nor accompanying the vehicle, vessel or aircraft, as may be appropriate, in relation to which the requirement was made, he shall be guilty of an offence, (b) in case of any other requirement under this section the person who fails to comply with the requirement shall be guilty of an offence. (1E) A requirement mentioned in paragraph (c) of subsection (1B) of this section shall remain in force until the search in relation to which it is made is completed. (1F) Where a requirement described in paragraph (a) of subsection (1B) of this section is made of a person, the search in relation to which the requirement is made shall be carried out as soon as is practicable.", and the said paragraphs (b) and (c), as so amended, are set out m paragraphs 1 and 2, respectively, of the Table to this section. 4.3 Evidently, s.23 significantly restricts a citizen's liberty. In this regard, in their book Misuse of Drugs: Criminal Offences and Penalties, Martin McDonnell and Paul McDermott at para 17.10 state the following:-
4.6 The above authorities make clear that a certain degree of latitude regarding the duration of roadside enquiries made by a member of an Garda Síochána is permitted, unless the duration is unreasonable. In the circumstances of the present case, as the duration of the complete search of the accused, his car and his passenger, including awaiting the arrival of the Dog Unit and their subsequent search, immediately prior to the accused being arrested for the commission of an offence of driving under s.4 (8) of the Road Traffic Act, 2010, lasted a total of 15 minutes, it is clearly a reasonable period of time to enable Garda McDonnell to carry out his investigation and within the remit of his powers under s.23 of the Misuse of Drugs Act, 1977, as amended. 4.7 Section 23 of the Misuse of Drugs Act, 1977, as amended, specifically permits a member of An Garda Síochána to prohibit a person from driving away from the scene or leaving the scene while a drugs search is being carried out on their vehicle. It would be absurd if a failure by a member of An Garda Síochána to make such a specific request in circumstances where an accused does not attempt to leave their car or ask to do so, as in the present case, rendered invalid a subsequent arrest for driving whilst under the influence of an intoxicant under s. 4 (8) of the Road Traffic Act, 2010. If a member of An Garda Síochána acts in a reasonable manner in the exercise of powers assigned to him under legislation, he should not be prevented from properly investigating a purported crime. As Clark J. held in State (Higgins) v Farrell [2009] 4 IR. 189 at para 21:
4.9 Furthermore, I am satisfied that the continued detention of the accused while Garda McDonnell searched his car and passenger was part and parcel of the one investigation, and was, therefore, a lawful detention and a lawful exercise of his powers under s.23 of the Misuse of Drugs Act, 1984, as amended, in particular s. 23 (1) (a). The accused did not attempt to leave the scene. Had he sought to leave, Garda McDonnell would have been permitted to require him not to remove his car, or to remain with his car until the search was completed, as a permitted under s.23 of the Misuse of Drugs Act, 1984, as amended. 4.10 Thus I am satisfied that the subsequent arrest of the accused by Garda McDonnell pursuant to s. 4(8) of the Road Traffic Act 2010 was a lawful arrest as he was lawfully detained whilst the search of his person, that of his passenger and his car was completed. 4.11 The questions posed are answered as follows:
Yes. ii. Was the subsequent arrest of the accused under Section 4 (8) of the Road Traffic Act 2010 a lawful arrest? Yes. iii. Does not arise. |
