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1. This consultative case stated raises an important point on the proper interpretation of Section 18 (1) of the Road Traffic Act, 1994.

2. The facts, so far is relevant, are as follows.

3. On the 17th day of June, 1998 the Defendant/Respondent (hereinafter referred to as the Defendant) appeared before Judge Michael Pattwell, a Judge of the District Court, to answer a complaint, the subject matter of a Summons served upon him. The complaint was that the Defendant did on the 15th day of January, 1998 at Racecourse, Cashel, Co. Tipperary, a public place, drive a mechanically propelled vehicle, to wit motor jeep registration K-572-BUH 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 blood did exceed a concentration of 80 milligrams of alcohol per 100 millilitres of blood contrary to Section 49 (2) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994.

4. At the said hearing the Director of Public Prosecutions was represented by Inspector Tadgh Browne. The Defendant was represented by Mr. Peter Reilly of James Reilly & Sons, Solicitors.

5. Evidence was given of how Garda Michael Mahony of Thurles Garda Station stopped the Defendant who was driving the said jeep at Racecourse, Cashel, aforesaid on the 15th day of January, 1998, of how Garda Mahony became suspicious that the Defendant had been drinking to excess, required him to furnish a specimen of his breath (which proved positive), and of how the appropriate procedures were followed up to and including the arrest of the Defendant and the furnishing by him of a specimen of his blood to Dr. William Ryan, a designated doctor.

6. The specimen was divided by the Doctor into two parts one part being furnished to the Defendant and the other sent to the Medical Bureau of Road Safety, which subsequently issued a certificate indicating a concentration of 109 milligrams of alcohol per 100 millilitres of the Defendant’s blood.

7. Under cross-examination by Mr. Reilly, Garda Mahony said that Dr. Ryan had divided the Defendant’s blood sample into two parts, placing each part into one of two glass bottles. Garda Mahony said that the glass bottles were not sealed but were secured only by means of a screw cap. He said that the glass bottles could not be sealed, save that on occasion the designated Doctor could put masking tape around the lid, although that did not happen in the present case. Garda Mahony agreed that a person could, if he had access to the bottle, open it, remove and replace the contents, and put the lid back on the bottle without anyone knowing that this had been done. Garda Mahony stated that after the screw cap had been applied to the bottle, it was placed in a cylindrical cardboard container and a seal was affixed to the container. The container was then posted to the Bureau.

8. At that stage in the evidence a glass bottle, its screw cap and a cylindrical container were produced to the Court so that the learned District Court Judge could inspect them. Garda Mahony confirmed that the bottle, screw cap and container were in all material respects identical with those used on the occasion in question. Having inspected the bottle and screw cap, the learned District Judge concluded that screwing the cap on to the bottle would not in fact seal it.

9. At the close of the prosecution case Mr. Reilly submitted on behalf of the Defendant that the prosecution had failed to prove its case for the following reasons:-

10. Mr. Reilly submitted that under Section 18 (1) of the Road Traffic Act, 1994 the designated Doctor, having taken a specimen of blood from a person is required to divide the specimen into two parts and “place each part in a container which he shall forthwith seal......”. Mr. Reilly submitted that the requirements of the Act had not been complied with in the present case because the container into which the Defendant’s blood sample had been placed was not in fact sealed.

11. Mr. Reilly relied upon the case of Attorney General v. Hollingsworth [1973] 107 ILTR 77 where the Supreme Court held that the regulations then in force were not complied with where a blood sample had been sent to the Medical Bureau of Road Safety in a tube which had been stopped with a screwed on screw top, because the regulations required that the tube be stopped with a stopper which would seal it. He referred to the final paragraph of the Judgment of Henchy, J. in that case where he said that:-

12. In reply Inspector Browne submitted that Section 18 (1) of the 1994 Act had been complied with in full. He submitted that the Defendant’s sample had been divided into two parts by placing it into two glass bottles. The Section was, he submitted, complied with once the glass bottles were placed in cardboard containers which, as was the fact, were in turn sealed.

13. The learned District Judge reached the conclusion that the requirements of Section 18 (1) of the Road Traffic Act, 1994, had not been complied with for the reason that the container, which under the Statute was required to be sealed, was the container which holds the specimen in question, and not some other container. As however he considered the point raised to be an important one he agreed to state a case for the determination of the High Court.

14. Both sides, we are informed, were consulted about the drafting of the case stated and the question submitted for the opinion of the High Court was:-

15. In the High Court, both sides made submissions on the assumption that the glass bottle referred to in evidence was the “container” referred to in Section 18 (1) of the Road Traffic Act, 1994. The Defendant relied upon Attorney General v. Hollingsworth to establish that the glass bottle had not been “sealed” while the Director of Public Prosecutions relied upon the unreported decision of Geoghegan, J. in the case of DPP v. McGovern in which Judgment was delivered on the 28th day of October, 1998.

16. In the course of the case stated the learned District Justice says that at a certain stage in the District Court proceedings “a glass bottle, its screw cap and a cylindrical container” were produced by the Prosecution to the Court and the Prosecution evidence was that the bottle, the screw cap and the container were in all material respects identical to those used in relation to the specimen taken from the Defendant. These items, however, were not attached to the case stated and, we are informed, that at the time of the hearing in the High Court, Counsel for the Director of Public Prosecutions had not seen any specimen of the kit issued by the Medical Bureau of Road Safety in connection with the taking of blood specimens for the purpose of the Act.

17. The case of Attorney General v. Hollingsworth relied on by the Defendant in the High Court may be important for illustrating the difference between a bottle which is “sealed” and a bottle the cap of which is merely screwed on. But it is important to remember that that case related to procedure under a different Act [The Road Traffic Act, 1968] and under different Regulations [The Road Traffic Regulations, 1968; S.I. 196 of 1969] and the artificial meaning given to the word “stopper” in those regulations.

18. The case of DPP v. McGovern relied on by the Director of Public Prosecutions in the High Court was very similar to, if not identical with, the present case. In that case the Certificate issued by the Medical Bureau of Road Safety pursuant to Section 19 of the 1994 Act included the following comment by the Chairman/Director of the Medical Bureau of Road Safety:-

19. The Director of Public Prosecutions however successfully submitted to the Court that the specimen bottle was “a container” within the meaning of Section 18 of the Road Traffic Act, 1994.

20. At page 4 of his Judgment Geoghegan, J. states:-

21. The fact that the bottle itself had not been sealed does not appear to have been adverted to.

22. In the event the learned High Court Judge in the present case accepted that the specimen bottle had not been sealed and answered the question of the learned District Court Judge in the negative.

23. Against that decision the Director of Public Prosecutions has appealed to this Court. Mr. McDowell, Senior Counsel, who appeared for the Director, first referred to the wording of Section 18 (1) of the Road Traffic Act, 1994. This, so far as it refers to specimens of blood reads as follows:-

24. Mr. McDowell submitted that, on the wording of the subsection, the division of the specimen into two parts takes place before either part is put in a container. But the division can not be carried out in the abstract. It contemplates and requires the existence of two impermeable vessels into which the blood can be placed without danger of contamination. This he submitted is the purpose of the glass bottles each of which, with its specimen, is then placed in a container which the Doctor must “forthwith seal”. The glass bottle is undoubtedly, in layman’s terms, a “container” in that it contains the specimen of blood. But it is not the container contemplated by the Section which refers to the container into which the glass bottle with its specimen is placed.

25. To illustrate his argument Mr. McDowell asked the Court to look at specimen kits issued by the Medical Bureau of Road Safety to the Gardaí for use in taking blood specimens under the Road Traffic Act, 1994.

26. Mr. Antoniotti S.C. who appeared for the Defendant in the Supreme Court objected to the procedure proposed by Mr. McDowell on the basis that the Director of Public Prosecutions had repeatedly submitted to the Courts that the glass bottle was the “container” within the meaning of Section 18 of the 1994 Act and that he should not now be allowed to shift his ground.

27. Mr. McDowell admitted that an unfortunate mistake had been made but pleaded that, if he was not allowed to put the matter right, the whole procedure for taking blood specimens under the 1994 Act would be endangered.

28. The Court, after consideration, decided to hear Mr. McDowell and to allow him produce specimens of the kit issued by the Medical Bureau of Road Safety for Counsel and for the Court. The Court took the view that, the matter at issue being one of law, it should hear Mr. McDowell’s submissions. Moreover it felt that any prejudice to the Defendant could - especially in the circumstances of this case which will be explained later - be put right by an appropriate Order for Costs.

29. Each kit is contained in an oblong rectangular cardboard box. The key documents in each box share a common code number and, if the system works properly, the Medical Bureau of Road Safety should be able to identify the whereabouts of any particular kit issued by them.

30. Inside each box are the following:-

31. Having examined the kit one could be in no doubt but that the cylindrical cardboard box is intended to be the “Container” referred to in Section 18 (1) of the Road Traffic Act, 1994. This is - and the glass bottle is not - the container which the designated Doctor is required to seal pursuant to Section 18 (1) of the Act.

32. The effect of subsection (4) of Section 18 and of subsection (4) of Section 19 is to create a statutory presumption that the respective procedures laid down in the earlier subsections of those Sections have been complied with “until the contrary is shown”. Thus Section 18 (1) of the Act required that the designated Doctor should “forthwith” seal the container and “complete the form prescribed for the purposes of this Section”. This form is the white form referred to above and, in the present case the designated Doctor, Dr. Ryan, declared (as provided in the form) that:-

33. In normal circumstances this Declaration would be sufficient to raise the statutory presumption referred to in Section 18 (4) in respect of everything contained in the Declaration and in particular that Dr. Ryan put the name of the Defendant and the date on each container. But when one looks at the Certificate issued by the Medical Bureau of Road Safety pursuant to Section 19 of the Act one finds in the entry opposite the words “Name and Address of person from whom the specimen was taken or who provided the specimen” the following answer “Tate Croom-Carroll, Dromanor House, Dundrum” . And then, in brackets, the following words “no name on container - Tate Croom-Carroll on specimen bottle”.

34. It appears to me that this direct conflict between the form completed by the designated Doctor under Section 18 and the Certificate issued by the Medical Bureau under Section 19 is sufficient to defeat the statutory presumption of regularity and to call for an explanation from the prosecution in a criminal case.

35. It is, of course true, that the purpose of the elaborate procedures which have been laid down under Sections 18 and 19 is to protect the blood specimen from tampering or contamination. Nevertheless it appears to me that Section 18 and the statutory instrument made under it (which prescribes the forms) contemplate and require that the Medical Doctor should write the name of the person from whom the specimen was taken on the container. Moreover it appears to me that only one species of container is referred to in Section 18 (1) and it is not possible to argue that the cardboard cylinder can be the “container” within the meaning of the Section for one purpose and the glass bottle the “container” for a different purpose. In the present case, if the glass bottle is the “container” it was not sealed. If the cardboard cylinder is the “container” it did not bear the name of the Defendant as contemplated and required by the Statute and the Regulations.

36. It was for these reasons, among others, that the Court decided that the Defendant would not be prejudiced if Mr. McDowell were allowed to put forward a different case on the law to that which was put forward in the Court below.

37. The Court cannot say that the answer given by the learned High Court Judge to the question posed to him was wrong. The problem is rather that the question posed in the Case stated does not raise the real issue. However this Court has been able to grasp the real issue from the facts set out in the case stated and, in the event, the Court has adopted the interpretation of Section 18 (1) put forward by Inspector Browne in the District Court.

38. The Court would accordingly answer the problem raised in the Case stated in the following way:-