S52 D.P.P. -v- Moorehouse [2005] IESC 52 (28 July 2005)


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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D.P.P. -v- Moorehouse [2005] IESC 52 (28 July 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S52.html
Cite as: [2006] 1 ILRM 103, [2006] 1 IR 421, [2005] IESC 52

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Judgment Title: D.P.P. -v- Moorehouse


Neutral Citation: [2005] IESC 52

Supreme Court Record Number: 231/04

Circuit Court Record Number:

Date of Delivery: 28/07/2005

Court: Supreme Court


Composition of Court: Murray C.J., McCracken J., Kearns J.

Judgment by: Murray C.J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Murray C.J.
Other (see notes)
McCracken J.
Kearns J.
McCracken J.


Notes on Memo: Answer 1st Question "No". Answer 2nd question "Merely exhaling into the appatatus is not sufficient compliance with the requirement under the section unless it enables the concentration of alcohol in the breath to be determined".



- 25 -

THE SUPREME COURT

Murray C.J.
McCracken J.
Kearns J.

213/04
In the matter of A CASE STATED
PURSUANT TO S. 16 OF THE COURTS OF JUSTICE ACT, 1947

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
COMPLAINANT
AND
BRIDGET MOOREHOUSE
DEFENDANT

JUDGMENT delivered the 28th day of July 2005, by Murray C.J.

This is a case stated by a Judge of the Circuit Court pursuant to
s. 16 of the Courts of Justice Act, 1947 in which two questions are asked of this Court concerning the interpretation of s. 13(1)(a) and 13(2) of the Road Traffic Act, 1974. The complainant had been erected pursuant to
s. 49 of the Road Traffic Act, 1961 and, having been brought to a Garda Station and required to provide two specimens of her breath pursuant to
s. 13(1)(a) was subsequently charged and convicted in the District Court for an offence pursuant to s. 23 of the Act of 1994 for failing to comply with the requirement under the aforesaid subsection. She appealed this conviction to the Circuit Court which has given rise to this case stated.

The Case Stated
The charge before the Circuit Court is that the defendant did:-

According to the case stated it was established in evidence that the defendant had been arrested for an offence pursuant to s. 49 of the Road Traffic Act, 1961 at 12:25 a.m. on 28th December, 2001 by Garda Brendan McGrath after he and his colleague in the garda patrol car, Garda Lacey, had observed a motor car being driven erratically by the defendant. The defendant was brought to Dun Laoghaire Garda Station where the usual procedures were followed, and about which there is no controversy. The defendant was taken to a waiting room by Garda McGrath and another member, Garda Byrne. After a period the defendant or accused was taken to the intoximeter room by Garda McGrath and Garda Byrne.

According to the case stated the facts established in evidence were as follows:
In the context of the foregoing evidence the Circuit Court Judge in the case stated stated 11th May, 2004 posed the following two questions of law:-
(1) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and where the member of An Garda Síochána indicates the manner in which the arrested person is to comply with the requirement, does s. 13 (2) of the Road Traffic Act, 1947, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda Síochána making the requirement? If the answer to this question is “no”, then
(2) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s. 13(1)(a) of the Road Traffic Act, 1994, and does so by exhaling into the apparatus designed for determining the concentration of alcohol in his breath, is that sufficient compliance with the “requirement” under the section so as to provide the arrested person with a defence to a charge of refusing or failing to comply forthwith with the requirement under s. 13(1)(a) of the Road Traffic Act, 1994?

Section 13(1), (2) and (3) of the Act of 1994

Section 13 of the Act of 1994 provides as follows:

The remaining subsections (4) and (5) of s. 13 refer respectively to a presumption in relation to the apparatus used for the breath test and the non-application of the Probation of Offenders Act, 1907 to an offence, which are not relevant in this context.

Section 23 referred to in subsection (2) provides for certain defences to a refusal to provide specimens of breath which are also not relevant for present purposes.

Counsel for the defendant also referred to s. 12 of the Act of 1994, in its original and amended form, as well as s. 14 of the same Act in support of his submissions and these are referred to below.

Decision

The only section which arises for interpretation is s. 13 of the Act of 1974. The charge before the Circuit Court arises under that section alone and not any other section. The task of the Court is to ascertain the intent of the Oireachtas when it enacted that section.

It is axiomatic that the starting point for the interpretation of any statutory provision is the text of the provision itself, which falls to be interpreted according to its ordinary and natural meaning.

In Howard –v- Commissioners of Public Works [1994] 1 IR 101 Blayney J., in a statement, which has also been cited with approval in subsequent judgments of this Court, stated:

At the risk of repetition the relevant text of s. 13(1) provides that


Subsection (2) then provides that
I find it difficult to see that any person arrested on suspicion of drink driving could understand their obligation under the section other than to exhale into the apparatus in a manner indicated by the Garda member. That is the requirement of s. 13(1)(a). It makes it mandatory on the person concerned to provide the specimen in accordance with the manner indicated by the Garda member if he or she “is to comply with the requirement”. Failure to do so is a failure to comply with the requirement.

I do not see any ambiguity in the section or indeed any need to imply any additional words to come to this conclusion.

There may be multiple ways of refusing or failing to comply with the requirement under subsection (1)(a). Subsection (2) makes it an offence to refuse or fail to comply forthwith with the requirement made. That is to say any refusal or failure to do so.

That is the specific offence created by this section.

The purpose of the section is to make it an offence not to exhale into the apparatus so that a proper test of the breath can be obtained. Did the Oireachtas intend that it would be an offence to give a blanket refusal to puff even mildly in the direction of the apparatus but not an offence to puff or haw gently in its direction so that some exhaled air manages to enter the apparatus in complete disregard of the manner in which the sample was to be given as required by the Garda member? Not only do I not think so but the Oireachtas expressly stated that the requirement to provide a specimen of breath will not be complied with if the person does not exhale as indicated by the Garda member.

That is the offence under s. 13(2) of refusing or failing to comply with the requirement under subsection (1)(a).

What happened in this case? The defendant was informed that she should inhale deeply, make a seal with her lips over the mouthpiece and blow at a steady pace down the breath tube. She said she understood these instructions. They were simple instructions. She did not seal her lips around the mouthpiece and “the breath she exhaled was not going into the breath tube. She did not exhale sufficient air in order to provide a complete breath specimen”. It was in these circumstances that the Garda member conceded that she did provide two specimens of her breath by exhaling into the apparatus but that these specimens, not surprisingly, were insufficient to allow the apparatus to determine the quantity of alcohol, if any, in the specimen. All of this is in the case stated.

On the basis of these facts could that have constituted a refusal or failure to comply with the requirement under s. 13(1)(a)? I think it is clearly capable of being so found. Whether there was in fact a refusal or failure is of course ultimately a matter of fact for the trial judge.

That, to my mind at any rate, is the plain and ordinary meaning of the only section governing the offence with which the defendant is charged.

The section makes no distinction between a refusal to provide a specimen of breath simpliciter or a refusal to do so in a manner indicated by the Garda member. The Oireachtas could have done so but they did not. There was no need to do so, unless one form of failure or refusal was to attract a heavier penalty than another. That obviously is not the case. As I have already stated the effect of subsection (2) is to make any refusal or failure to comply with the requirement an offence. It is commonplace that offences can be committed in different ways and a breach of the law will be an offence however the modus operandi is adopted to breach it.

I propose to go on to consider the section in the context of the Act as a whole and also other specific provisions of the Act to which the defendant’s counsel have referred. Before doing so, there is one other submission made on behalf of the defendant which I wish to address. It was submitted that in some sense the phrase in subsection (1) which provided that the Garda member may indicate the manner in which the person is to comply with the requirement was in some sense only “enabling” or merely “enabling” so that it should be considered separately and distinctly from the rest of the sentence in which that phrase is found. The suggestion seems to be that it does not form part of the requirement which may be made of the arrested person under the subsection and therefore ignoring the instructions of the Garda member while at the same time managing to get some little air into the apparatus does not constitute a breach of that requirement.

How the phrase, which is not even a separate sentence, is characterised does not seem to me to have any great import. The statutory power is given to Garda members and is given for the purpose of enabling them to exercise it. In any event, the fact remains that the Oireachtas expressly gave the power to the Garda member to indicate the manner “in which he is to comply with the requirement” [emphasis added]. The Oireachtas made it mandatory for the arrested person to comply with the Garda request if they are to fulfil the requirement that is being made of him or her under the section. That seems to me to be the effect of the phrase, however it is characterised. The canon of construction relied upon by the defendant, according to which the provisions of a penal statute should be construed strictly, only arises where there is a real doubt as to the true intention of the legislature. Since I have found the section to be unambiguous this canon of construction does not apply.

The Act as a whole and subsections (12) and (14)
Consideration of the ordinary and natural meaning of s. 13 in isolation may not be conclusive as to the interpretation to be given to it.

In East Donegal Cooperative –v- Attorney General [1970] IR 317 at p. 314 Walsh J. stated, by reference to the Act of the Oireachtas in issue in that case,

This statement is particularly applicable to broad and general provisions of an Act where its interpretation may be less obvious than in the case of technical or detailed provisions. In a sense Walsh J. could be said to be alluding to the purposive or teleological methods of interpretation. However, I do not think that the interpretive question posed in this case is so complex as to warrant any further elaboration on the ambit of those methods of interpretation.

Suffice it to say that consideration of a specific provision of an Act in the context of the Act’s objectives and other provisions may suggest the existence of an ambiguity in that provision not otherwise readily apparent, or may confirm the meaning which the provision at first appears to have or simply not disclose any element which would dislodge the ordinary natural meaning that the provision in itself has.

I do not think that I need to give any lengthy consideration to the meaning of s. 13 in the context of the objects of the Act as a whole. The long title of the Act of 1994 states it to be an Act to amend and extend the Road Traffic Acts, 1961 – 1987. Section 1 of the Act of 1994 provides that it may be cited and construed as the Road Traffic Acts, 1961 – 1994.

It is quite obvious from an examination of the Road Traffic Acts that one of their objects is to control and regulate the use of mechanically propelled vehicles in public places. It is equally obvious that among the objects of the Acts in question is the prohibition on driving a motor car by a person who has an excess of alcohol in his or her blood. To that end provision is made for the arrest of drivers suspected of driving with an excess of alcohol and for the carrying out of tests, including breath tests, for the purpose of establishing the level of alcohol in the driver’s blood. It is probably trite to say but it is within the objects of the Act that persons who are obliged to provide a specimen of their breath should be subject to prosecution should they fail or refuse to provide such samples including should they try to evade providing a sample in a manner which enables the authorities to carry out an effective and reliable test.
Therefore the interpretation which I have concluded should be given to s. 13(1)(a) and (2) is entirely consistent with the objects of the Act.

Central to the arguments submitted on behalf of the defendant was the reliance placed on the terms of s. 12 and 14 when compared to the terms of s. 13. It was submitted that since these sections created distinct offences of (a) a failure or refusal to provide a sample under those sections and (b) a failure to provide a sample under those sections in a manner indicated that this meant that these were separate offences, only one of which had been criminalised under s. 13. The submission was that s. 13, taken in conjunction with subsections (12) and (14), must or should be interpreted as creating an offence of a refusal or failure to provide a specimen of breath but did not make it an offence to refuse or fail to do so in the manner specified by a Garda member. Alternatively, there was at least an ambiguity as to whether the latter offence had been criminalised by s. 13 and the defendant should be given the benefit of that ambiguity since it is a canon of construction that penal statutes be interpreted strictly. Section 12 provides for the administration of breath tests at the roadside when a Garda member is of the opinion that a person in charge of a motorcar has consumed intoxicating liquor. Section 12(1) of the Act, insofar as is relevant, provides as follows:
Section 12(2) of the Act provides:

Counsel for the defendant also sought to contrast the provisions of s. 13 with those of s. 14 of the Act of 1994 which concerns the powers of a Garda where a motorist is suspected of being under the influence of drugs while in charge of a motorcar.
Section 14(4) of the Act, which is relied upon by the defendant, provides as follows:

Section 14(5) provides:

Dealing first of all with s. 12 it can be said that it is clear and unambiguous. Subsection (2) is framed so as to distinguish between a refusal or failure to comply with a requirement under the section and a refusal or failure to comply with such a requirement in a manner indicated by a member of the Gardaí.

On behalf of the defendant it was argued that that distinction between a refusal to comply with a requirement and to comply in a manner indicated is clear and unambiguous in s. 12. No such distinction is made in s. 13(2) since it refers to a refusal or failure to comply with a requirement simpliciter. Therefore, it was submitted, the Oireachtas must be taken as not having intended s. 13(2) to apply to a refusal or failure to provide a specimen of breath in the manner indicated by the Garda member.

It seems to me that this is a false syllogism. Section 12 is unambiguous in its own terms and, as I have concluded, so is s. 13. Both render a refusal or failure to comply with a requirement under the relevant section an offence whether the non-compliance arises from a refusal or failure simpliciter or a refusal or failure to provide a specimen of breath in a manner required by the Garda member. It certainly can be said that s. 12 deals with the matter in a form and terms different to that used in s. 13 but I see them as no more than two ways of achieving the same statutory result. One can readily envisage other drafting formulae which could achieve the same result such as to enable a Garda member to “require the person, in a manner directed by him, to provide by exhaling into an apparatus for determining the concentration of alcohol in the breath, and making it an offence not to comply with the requirement …”. There are undoubtedly other ways in which s. 13 (or s. 12) could have been drafted. One is entitled to expect consistency of style on the part of the drafter of a Bill, particularly between sections of the same statute. The form adopted in s. 12 is certainly more detailed and perhaps more pedantic. Section 12 could have been drafted in the same way as s. 13 and vice versa since both achieve the same result. Only for the sake of consistency of expression would it have been better if the drafter had adopted the same approach in each case. In that sense the drafting of the Act was poor in style and form.

However, a consideration of s. 12 does not in my view take away from the intent of the Oireachtas as clearly as expressed in s. 13. (1)(a) and (2).

Section 14 is in some material ways a rather different matter. There the distinction is made between the requirement of a Garda member and that of a medical doctor. Insofar as s. 14 is relevant to the issue my comments regarding s. 12 would apply equally.

Section 13 is the only section which applies in this case.

Having concluded that s. 13(1)(a) and (2) are in themselves clear and unambiguous in their meaning and effect which meaning and effect, is not in my view, dislodged by a consideration of the other provisions of the Act I would answer the first question posed in the Case Stated in the affirmative. In those circumstances consideration of the second question does not arise.

4

THE SUPREME COURT

213/04

Murray CJ
McCracken J
Kearns J

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND
IN THE MATTER OF SECTION 13 OF THE ROAD TRAFFIC ACT 1994

Between:
The Director of Public Prosecutions
Complainant
AND
Brigid Moorehouse
Defendant

Judgment of Mr Justice McCracken delivered the 28th day of July
2005
___________________________________________________________


I have had the opportunity of reading in draft the judgments of my colleagues Murray CJ and Kearns J in this matter. I agree with the reasoning and judgment of Kearns J and I would add a few remarks of my own.

The relevant portions of s.13(1) of the Road Traffic Act 1994 reads as follows:-Section 13(2), under which the Defendant is charged in the present case, reads:-
In my view the meaning of these two sections is quite clear and unambiguous. Where a member of the Garda Síochána is of opinion that a person has consumed an intoxicant he may at his discretion require the person, as in this case, to exhale into an apparatus or he may require the person to give a specimen of blood or a specimen of urine. The offence provided for in subsection (2) is refusing or failing to comply forthwith with “a requirement under subsection (1)(a)”. The only requirement in subsection (1)(a) is to provide two specimens of breath. If the subsection had intended that the manner of compliance was also a requirement, it surely would have done so by some such wording as “and may require such person to exhale into the said apparatus in a manner indicated by such member”. In such circumstances, the person concerned would clearly be refusing or failing to comply with a requirement under the subsection if the person did not comply with the manner indicated by the member. The offence created is failure to comply with the “requirement”, and that is the only offence created.

This is to be contrasted with the provisions in s.12 of the Act, which relate to an apparatus for indicating the presence of alcohol in the breath rather than the concentration of alcohol in the breath. Subsection (1)(a) of that section also contains a provision that the member concerned “may indicate the manner in which he is to comply with the requirement”, and in subsection (2) there are two offences set out, firstly the failure to comply with the requirement under the section and secondly the failure to comply with a requirement in a manner indicated by a member of An Garda Síochána. There is no such distinction in the section under which the Defendant is charged in the present case.

Furthermore, in s.13 itself, if the person is required to provide a specimen of blood or a specimen of urine, under subsection (3) it is an offence either to refuse or fail to comply with the requirement, and there is a separate specific offence if the person refuses or fails to comply with the requirement of a designated doctor in relation to the taking of a specimen of blood or urine. There are similar provisions in s.14(5) and s.15(2) of the Act. In all these cases the draftsman of the Act is very careful to distinguish between separate offences which may occur in relation to the same basic provision.

This is a penal statute, providing for a term of imprisonment in the event of the commission of an offence. In such circumstances, if an offence is to be created by the statute, that offence must be clearly specified and defined. It is not something to be implied from the wording of the statute. In the present case, the statute is quite clear that the offence is failure to comply with “a requirement”, and I can see no justification for any construction of the section which would extend the offence beyond that stated.

Account must also be taken of the purpose of the section which is to enable the garda concerned to determine the concentration of alcohol in the person’s breath. If the construction as put forward by the Complainant is accepted, then if the person concerned does supply the specimens of breath sufficient to determine the concentration of alcohol, but does so in some manner other than that indicated by the garda who makes the requirement, in the absence of some very specific provision I find it difficult to see how that could possibly be construed as an offence. Equally, if the member of the Garda Síochána indicated a manner of compliance with the requirement which was very difficult, surely the person cannot be penalised for giving the specimens of breath in some much simpler manner. I would therefore answer the first question in the case stated as “No”.

With regard to the second question, the purpose of the requirement is to enable the Gardaí to determine the concentration of alcohol in a person’s breath. This is the purpose for which the two specimens of breath are required. If a person exhales into the apparatus in a manner which does not allow the concentration of alcohol to be determined, presumably because not a sufficient quantity of the person’s breath enters the apparatus, then I do not think the person can be said to have provided the two specimens of breath. Indeed, it is presumably to prevent this occurring that the provision is included enabling the member concerned to indicate the manner in which the person is to comply with the requirement.

I would, therefore, answer the first question “No” and answer the second question “It is not sufficient compliance under the section unless the concentration of alcohol in the breath can be determined as a result of the person so exhaling”.


3

Murray C.J.
McCracken J.
Kearns J.


THE SUPREME COURT
[213/2004]
IN THE MATTER OF SECTION 16 OF
THE COURTS OF JUSTICE ACT, 1947
AND
IN THE MATTER OF SECTION 13 OF
THE ROAD TRAFFIC ACT, 1994
AND
IN THE MATTER OF AN APPEAL FROM THE DUBLIN METROPOLITAN DISTRICT COURT
THE DIRECTOR OF PUBLIC PROSECUTIONS
COMPLAINANT
AND
BRIDGET MOOREHOUSE
DEFENDANT
JUDGMENT of Mr. Justice Kearns delivered the 28th day of July, 2005

This matter comes before the court by way of case stated from the Circuit Court (Judge Matthews) pursuant to s. 16 of the Courts of Justice Act, 1947. The case concerns the nature of the offence created by s. 13 of the Road Traffic Act, 1994, which imposes an obligation on a person arrested under s. 49 of the Act to provide two specimens of his breath at a Garda Síochána station.

The case stated arises out of the following set of facts. The defendant was charged on Dún Laoghaire charge sheet number 2525 that she did “on the 28th of December, 2001, at Dún Laoghaire Garda Station in said district being a person arrested under s. 49 (8) of the Road Traffic Act, 1961, having been required by Francis Byrne, a member of the Garda Síochána at Dún Laoghaire Garda Station pursuant to section 13 (1) (a) of the Road Traffic Act, 1994, to provide two specimens of your breath, did fail to comply forthwith with the said requirement in the manner indicated by the said member of the Garda Síochána, contrary to s. 13 (2) of the Road Traffic Act, 1994.”

The matter came before Dún Laoghaire District Court on the 1st July, 2002, when the defendant was convicted of the offence charged and having served notice of appeal against the conviction came before the Circuit Court on the 15th March, 2004, when evidence was taken, following which the case was adjourned to the 29th March, 2004, for legal submissions.

In the course of the evidence, Garda Brendan McGrath stated that he was a member of An Garda Síochána and was an observer in a Shankill patrol car with Garda James Lacey as driver on the 28th December, 2001. They observed an Opel estate car driving erratically and followed the vehicle. When the vehicle came to a halt, he arrested the defendant, Bridget Moorehouse, having formed the opinion she was incapable of having proper control of a mechanically propelled vehicle in a public place.

The arrest took place in the early hours of the morning and, following caution, the accused was conveyed to Dún Laoghaire Garda Station where she was placed in a waiting room. Garda Francis Byrne gave evidence that shortly after 1 a.m. he took Bridget Moorehouse to the doctors’ room with Garda McGrath and showed her the intoximeter equipment. Having observed Bridget Moorehouse for 20 minutes, he was satisfied she had “nil by mouth”. He then made a requirement under s. 13 (1) (a) of the Road Traffic Act, 1994, as follows:-

He asked Bridget Moorehouse if she understood the requirement which he explained in ordinary language and she said that she did. Having entered her details into the intoximeter, he opened a sealed bag in front of Bridget Moorehouse which contained a mouthpiece and he placed it on the breath tube. Prior to Bridget Moorehouse giving her first breath sample, he explained to her to inhale deeply, to make a seal with her lips over the mouthpiece and to blow at a steady pace down the breath tube. Bridget Moorehouse was unable to provide a complete breath specimen on this occasion or indeed in the course of two subsequent tests. She was unable to seal her lips around the mouthpiece, and the breath she exhaled was not going into the breath tube. The case stated records that she did not exhale sufficient air in order to provide a complete breath specimen. In cross-examination, Garda Byrne agreed that the defendant did provide at least two specimens of her breath by exhaling into the apparatus, but these specimens were insufficient to allow the apparatus to determine the quantity of alcohol, if any, in the specimen. The defendant was subsequently released from custody having been charged by Sergeant James Murphy with having failed to provide two complete breath specimens in the manner outlined to her by Garda Byrne. Evidence was also given that the formula used by the gardaí in making the requirement of the defendant to provide two samples of her breath was in accordance with the instructions provided by the Garda Síochána as part of the instructions for the operation of the intoximeter EC/IR.

The Circuit Court judge in the case stated on the 11th May, 2004, posed the following questions of law:-
(1) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s.13 (1) (a) of the Road Traffic Act, 1994, and where the member of An Garda Síochána indicates the manner in which the arrested person is to comply with the requirement, does s.13 (2) of the Road Traffic Act, 1947, make it an offence to refuse or fail to comply with the requirement in the manner outlined by the member of An Garda Síochána making the requirement? If the answer to this question is “no”, then
(2) Where following an arrest under s. 49 of the Road Traffic Act, 1961, the arrested person is required to provide two specimens of his breath pursuant to s.13 (1) (a) of the Road Traffic Act, 1994, and does so by exhaling into the apparatus designed for determining the concentration of alcohol in his breath, is that sufficient compliance with the “requirement” under the section so as to provide the arrested person with a defence to a charge of refusing or failing to comply forthwith with the requirement under s. 13 (1) (a) of the Road Traffic Act, 1994?

Relevant sections of the Road Traffic Act, 1994

The provisions of s. 13 of the Road Traffic Act, 1994, which are relevant in the circumstances of the present case, are s. 13 (1) (a) and s. 13 (2). Section 13 (1) is in the following terms:-

Section 13 (2) of the Road Traffic Act, 1994, provides as follows:-In argument before this court, counsel on behalf of the defendant contends that the behaviour which is criminalised by s. 13 (2) is only the refusal or failure forthwith to comply with a requirement made under s. 13 (1) (a). In other words, where a requirement is made, and the person does not comply, then, simpliciter, he commits an offence. Section 13 (2) does not, it was argued, criminalise a refusal or failure forthwith to comply with the requirement “in the manner indicated by the said member of the Garda Síochána” , being the charge that was laid against the defendant in the present case. Consequently, where a requirement is made, and the person complies by giving a specimen but does not do so in the manner indicated by the garda, he does not commit an offence.

It was further submitted that if the legislature had intended to make it an offence to fail to comply with the requirement “in the manner indicated by the…member of the Garda Síochána” then this could have been provided for in s. 13 (2) of the 1994 Act.

Section 12, the immediately preceding section, deals with the administration of roadside preliminary breath or breathalyser tests. Section 12 (1), insofar as is relevant, provides as follows:-

Section 12 (2) then provides that:-Section 12 (2) therefore unambiguously makes it an offence not just to refuse or fail to comply with the requirement made under the section, but also makes it an offence to refuse or fail to do so in a manner indicated by a garda. This provision is absent from s. 13 (2).

Section 2 of the Road Traffic Act, 2003, substituted a new section for s. 12 of the Road Traffic Act, 1994, which did no more than alter the amount of penalty from £1000 to €2500. It did not alter the provision whereby s. 12 repeated the duality of offences created under subs. 12 of the 1994 Act. This, it was submitted, provides further confirmation that the offence under s. 13 with which the defendant has been charged in the present case is not one known to the law.

It was further submitted that the provisions of s. 13 could be usefully contrasted with the provisions contained at s. 14 of the 1994 Act, which deals with the powers of a garda where a motorist is under suspicion of having consumed drugs. Section 14 (4) provides:-

Section 14 (5) then goes on to provide:-It was submitted, that, as in the case of s. 12, s. 14 creates a duality of offences. It makes it an offence not just to refuse or fail to comply with a requirement, but it also makes it an offence to refuse or fail to comply with the requirement in relation to the taking of a specimen. The criminalisation of the failure or refusal to comply with an instruction in relation to the manner in which a specimen is to be provided is absent from s. 13.

In response, counsel on behalf of the Director of Public Prosecutions submitted that the manner in which a person is instructed to comply with the requirement to provide two specimens of his breath is in itself an ingredient of the requirement. The Oireachtas, it was submitted, obviously took the view that persons might need to be directed by the gardaí as to how to use the machine so as to provide a specimen. The section simply left it open to the gardaí to fill in the precise ingredients of the requirement at their own discretion. This does not however mean that the gardaí are defining the offence themselves, for any directions that they give can only be given in the context of the manner of “exhaling into an apparatus for determining the concentration of alcohol in the breath.”

Any alternative view could frustrate the operation of the section. For example, where a garda tells a person that a particular machine needs to be exhaled into via a mouthpiece for five seconds with a deep breath in order for a specimen to be obtained, a situation could well arise whereby a person lightly exhales into the machine via its air-vent for two seconds. Such a person could argue that they had complied with the plain meaning of the words of the section in that there was now a specimen of their breath lodged somewhere in the machine. The only logical meaning of the word “specimen” in s. 13 (1) (a) is that it is a sample which permits the concentration of alcohol in the breath to be determined. In such circumstances, it follows that the direction given by the gardaí as to the manner in which such a sample is to be obtained is an ingredient of the offence. Precisely the same considerations provided the answer to the second question raised in the case stated, namely, that the only logical meaning of the word “specimen” in the particular context is that it is a sample which permits the concentration of alcohol in the breath to be determined.

Counsel relied on D.P.P v. Doyle [1996] 3 IR 579 as authority for the proposition that s. 13 of the Road Traffic Act, 1978, should not be interpreted in an artificial manner. That section provided that a person committed an offence who “refuses or fails” to comply with a requirement to provide a specimen of blood or urine. On a consultative case stated from the District Court, Geoghegan J. held that s.13 (3) of the Act of 1978, created one offence, the offence of non-compliance with the requirement to permit a sample to be taken. The court rejected the argument that the section created two offences, that of failing to provide a sample and that of refusing to provide a sample. It had been submitted in the case that although the evidence established a refusal, it did not establish a failure, and that as the charge in the summons was a failure only, the defendant was entitled to be acquitted. Geoghegan J. held at p. 583 :-

Thus, while it was conceded there was an obligation to construe penal statutes strictly, that did not mean that they should be construed so as to favour a defendant whenever there is a debate about what a section means. A penal statute should not be presumed to create an absurdity any more or less than any other statute should be.

Reliance was also placed on the observations of Denham J. in D.P.P. (Ivers) v. Murphy [1999] 1 IR 98 at 111, where she stated:-

Accordingly, it was submitted that a purposive approach to interpretation can co-exist with the requirement to construe penal legislation strictly. Common sense, it was suggested, is not inconsistent with strictness.

Accepting that it was not obvious why the legislative drafters drew a distinction in the manner in which s. 13 differs from s. 12 and s. 14, it was nonetheless submitted that the additional words in s. 12 and s. 14 are not essential and simply copper-fasten what is the true position in any event. The alternative view is that the legislative drafters were of the view that persons should not be able to frustrate s. 12 and s. 14 of the Act by providing a literally correct but practically useless and absurd “compliance”. Be that as it may, the court, it was submitted, should not for its part interpret s. 13 so as to permit its abuse and thus achieve an absurd result.

Decision

It is a well established presumption in law that penal statutes be construed strictly. This requirement manifests itself in various ways, including the requirement to use express language for the creation of an offence and the further requirement to interpret strictly words setting out the elements of an offence [Maxwell on The Interpretation of Statutes, 12th Ed., (pp. 239-240].

If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence, so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. A desired statutory objective must be achieved clearly and unambiguously, particularly where statutes of strict liability, such as the Road Traffic Acts, are concerned. Thus, in construing a penal statute, the court should lean against the creation or extension of penal liability by implication.

In D.P.P. v. Corcoran [1995] 2 IR 259 this principle was applied specifically by the High Court (Lavan J.) to hold that where a requirement under s. 13 (1) (b) of the Road Traffic (Amendment) Act, 1978, has been made of an arrested person and that person opts to permit a specimen of blood to be taken but through no fault of that person the designated medical practitioner is unable to obtain a specimen, that person is under no legal obligation to furnish a specimen of his urine. Emphasising that the court was not entitled to go beyond the plain meaning of the subsection concerned, Lavan J. at p. 266 adopted the same quotation from Maxwell on the Interpretation of Statutes (12th Ed, 1976) which Blayney J. had quoted with approval in Howard v. The Commissioner of Public Works [1994] 1 IR 101 at p.154, saying:-

That is not to say that a penal statute cannot be construed in a purposive manner, or that the court should readily adopt a construction which leads to an artificial or absurd result. This is particularly so in Road Traffic Act cases and I find myself in complete agreement with the sentiment expressed by O’Flaherty J. in D.P.P. v. Cormack [1999] 1 ILRM 398 at p. 400 when, in relation to a prosecution under s. 49 of the Road Traffic Act, 1961, he stated:-In D.P.P. v. Stewart [2001] 3 IR 103 I felt obliged to note at p. 111 that:-Bearing these principles and caveats in mind, one may now turn to consider precisely what offences are created by s. 13 of the Road Traffic Act, 1994.

In this regard, it is useful to note what Robert Pierse has to say in relation to refusal offences under s. 13 in his book Road Traffic Law (Vol 1: Commentary, 3rd ed.), (Dublin, 1st law, 2004). The author states (at para.6.7.5):-

“Section 13 creates three offences, i.e:
(a) Refusal to give, when required by or/and as directed by a Garda, two breath specimens under section 13(1)(a) and subsection (2) of section 13 of the 1994 Act….
(b) Refusal to give the doctor the blood or urine specimen – subsection (3)….
(c) Refusal to give an alternative specimen(s) as required – subsection (3)”.

It should be noted from the foregoing that Pierse does not consider the refusal to give breath specimens in a manner indicated by a garda to be an offence under the section.

By contrast under s. 12 of the same Act which provides for roadside breath tests, the author states (at para 6.5.3):-

In other words, two separate offences are created by s. 12. However, can it be said that two separate offences are created by s. 13 (2)?

Having regard to the plain meaning of the words contained in s. 13 (2) and the marked contrast in terminology between s. 13 (2) and the express wording of s. 12, and adopting an approach to construction which does not ignore other provisions of the same Act, particularly when they are addressed to similar or identical issues, one can only conclude that two offences are not created by s. 13 (2).

Ultimately, therefore, the kernel of this case is to enquire whether the words “and may indicate the manner in which he is to comply with the requirement” are merely enabling provisions for the garda making the requirement under s. 13 (1) (a), or do they form part of the requirement itself.

An immediate consequence of finding that they form part of the requirement would be that no distinction or difference could be drawn between an outright refusal to provide a breath specimen on the one hand and a failure to comply with the requirement of a garda as to how it should be done on the other. However, these are clearly two quite different factual circumstances which can not logically be conflated into one. The fact that they are different is expressly recognised in s. 12.

I am therefore driven to conclude that the words do not form part of the requirement, but are merely enabling words whereby a garda may and should indicate how a breath test is to be performed. For the words to have the meaning contended for by counsel on behalf of the complainant would in reality require the insertion of the following words in s. 13 (2):-

Quite clearly, to give s. 13 this extended meaning would of necessity involve judicial rewriting of the statutory provision, which is clearly impermissible.

Thus, a summons or charge sheet which had simply contended that the defendant had failed pursuant to s. 13 (1) (a) of the Road Traffic Act, 1994, to provide two specimens of her breath, would clearly have been an offence identified by and coming within the terms of s. 13 of the Act.

Had that occurred the entire debate as to whether there was a “reasonable excuse” for failure to provide a breath test could have taken place within section 23 (1) of the 1994 Act, which provides a defence if the defendant can satisfy the court there was a “special and substantial reason” for his refusal or failure, provided the arrested person supplied or offers to supply the other type of sample.

However, I would be of the view that the charge in this particular case, and the conviction recorded in respect thereof is one which is not provided for by the section and thus by virtue of the requirements to construe such statutes strictly, the answer to the first question in the case stated must be “no”.

Insofar as the second question is concerned, I agree with the submission of counsel for the complainant that the specimen of breath provided must be such as to enable the concentration of alcohol in the breath to be measured. That is the purpose for which the specimen is provided. If it does not so enable or permit , there is non-compliance with the requirement under the section, so that the arrested person thereafter will in the ordinary way only have such defence to a charge of refusing or failing to comply forthwith with the requirement as may arise under s. 23 of the Act. I am obviously leaving to one side other defences which might of course still be raised, such as an alleged defect in the equipment or the like. The answer now given is purely directed to the issue of what is or is not compliance by the person of whom the requirement is made. I would therefore answer the second question by stating that merely exhaling into the apparatus is not sufficient compliance with the requirement under the section unless it enables the concentration of alcohol in the breath to be determined.

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