THE HIGH COURT
		1996 No. 65ss

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961 

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MAURICE SHERIDAN)
		APPELLANT
AND
PETER DEMPSEY 
		RESPONDENT

Judgment of Mr. Justice Kinlen delivered the 2nd day of July, 1997

	This is a case stated by Judge Timothy H. Crowley sitting at Dun Laoghaire District Court in the County of Dublin and the Application in writing of the Appellant, Garda Maurice Sheridan through the D.P.P. for the opinion of the High Court as to whether the learned Judge of the District Court was erroneous in points of law or not.
	The case stated reads as follows:-
"1.	At the sitting of the District Court at Dun Laoghaire District Court on the 20th April, 1995, the Respondent appeared before me to answer the accusation of the Director of Public Prosecutions, at the suit of Garda Maurice Sheridan, that the said Peter Dempsey on the 10th December 1994 at Ulverton Road, Dalkey, within the Dublin Metropolitan District, being the user of a mechanically propelled vehicle, registered number 7580 DI, did give to a member of the Garda Siochana, namely Garda M. Sheridan an address which was misleading when such address was demanded of him under Section 107 of the Road Traffic Act 1961, as amended, by the said member of an Garda Siochana, contrary to Section 107 of the Road Traffic Act 1961, as amended by Section 3 of the Road Traffic (Amendment) Act 1984, and secondly, that the said Peter Dempsey on the 6th November 1994 at Summerhill Parade within the Dublin Metropolitan District drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours of so driving the concentration of alcohol in his blood exceeded a concentration of 100 millilitres of alcohol per 100 millilitres of blood, contrary to Section 49 (2) and (4) (a) of the Road Traffic Act 1961, as inserted by Section 10 of the Road Traffic (Amendment) Act 1978, as amended by Section 3 of the Road Traffic (Amendment) Act 1984.

	The second charge was amended so as to read "Summerhill Road", instead of "Summerhill Parade" and so as to insert the registered number of the mechanically propelled vehicle as 7850 DI.

	The Prosecution was represented at the said hearing by Mr. David Rafferty, Solicitor, of the Office of the Chief State Solicitor, and the Respondent was represented by Mr. Ronald Lynam, Solicitor, of Partners at Law, Solicitors, 8 Adelaide Street, Dun Laoghaire, County Dublin.

2.	The facts proved or admitted were as follows:-
	(a)	Garda Maurice Sheridan, a member of An Garda Siochana, stationed at Dun Laoghaire, was on uniformed duty as observer in the Dun Laoghaire Patrol Car on the 6th November 1994.  While driving along Summerhill Road, a public place, at approximately 9.23 p.m. he observed motor car 7580 DI driving in the middle of the road towards Dun Laoghaire.  He put on the blue light and signalled the driver to stop.  The driver did so.  The driver got out.  He was unsteady on his feet.  Garda Sheridan spoke with the driver who gave his name as Peter Dempsey of 3 Martello Avenue.  During his conversation with the Respondent, Garda Sheridan noticed that there was a strong smell of intoxicating liquor from his breath and his speech was slurred.

	(b)	Garda Sheridan formed the opinion that the Respondent has consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place.  He told him this and that he was arresting him under Section 49(6) of the Road Traffic Act 1961 as amended.  Garda Sheridan explained that the Respondent was being arrested for drunken driving.  The arrest took place at 9.25 p.m. and was for an offence under Section 49(1), (2) or (3).  He had the Respondent conveyed to Dun Laoghaire Garda Station, arriving there at 9.30 p.m.

	(c)	Garda Sheridan contacted Dr. Hooper at 9.32 p.m. and he arrived at the Station at 9.46 p.m.  He brought the Doctor and the Defendant to the Doctor's Room at the Station where he introduced the Doctor to the Defendant as the designated registered medical practitioner and explained that he was the Garda Doctor.

	(d)	At 9.49 p.m. he required the Respondent, pursuant to Section 13(1)(b) of the Road Traffic (Amendment) Act 1978 to permit the Doctor to take from him a specimen of blood or at his option to provide for the Doctor a specimen of his urine.

		He warned the Respondent that to refuse or fail to comply with his requirements was an offence and he outlined the penalties.  At 9.50 p.m. the Respondent opted for urine and he handed a sealed box marked "U" and sealed jug to the Doctor.  The Respondent was unable to provide a sample.  Garda Sheridan gave the Respondent the option against at 9.55 p.m.  The Respondent then opted for blood.  The Respondent provided a sample of blood at 9.56 p.m.  The provisions of Section 21 of the Road Traffic (Amendment) Act 1978 were complied with.  The Respondent was released at 9.57 p.m.
	(e)	Garda Sheridan had the specimen posted by registered post to the Medical Bureau of Road Safety on the 7th November 1994 and he had a receipt from the Marine Road Post office.  On the 9th November 1994 he received a certificate from the Bureau Certifying that the specimen in question had a concentration of 180 milligrams of alcohol per 100 millilitres of blood.

	(f)	On the 25th November 1994 Garda Sheridan received a letter from the Medical Bureau of Road Safety stating that they were unable to effect service of the certificate on the Respondent.

		On the 10th December 1994 Garda Sheridan was on duty and observed motor car 7580 DI driving along Ulverton Road, Dalkey.  He stopped the vehicle and demanded the production by the driver of his driving licence and certificate of Insurance.  The driver had not got them with him and he gave his name as Peter Dempsey of Ardbrugh Road, Dalkey.  This was the same man that Garda Sheridan had arrested for drunken driving on the 6th November 1994 at 9.25 p.m.  Garda Sheridan queried him about this address and he stated that he used Ardbrugh Road as a business address.  Garda Sheridan stated that he also mentioned a Guest House.  Garda Sheridan then said that the Respondent had given him a misleading address and he arrested him for same.

	(g)	Garda Sheridan brought the Respondent to Dun Laoghaire Station where the Respondent informed him that the name and address given on the first occasion were correct.  He was charged on Dun Laoghaire Sheet 734/94 with the charges referred to at paragraph 1 above.  The Respondent was released on £100 cash bail and was remanded to Dun Laoghaire Court on the 16th January 1995 at 10.30 a.m. for hearing.  Before being released Garda Sheridan served the Respondent with his copy of the certificate relating to the offence contrary to Section 49(2) of the Road Traffic Act on the 6th November 1994.

	(h)	Garda Sheridan confirmed that he was present when the Member in Charge at the Garda Station was taking all of Mr. Dempsey's details and also confirmed that the custody regulations 1987 had been complied with.

	(i)	Garda Sheridan handed into Court the certificate of posting, the Doctor's certificate and the Medical Bureau's certificate, which was examined by the Defence.

	(j)	In cross-examination Garda Sheridan accepted that the Respondent had a hut at Ardbrugh Road.

3.	Further, it was accepted that shortly after the 12th January 1995, Garda Sheridan received a letter, dated the 12th January 1995, addressed to him at Dun Laoghaire Garda Station from Ronald Lynam, Solicitor for the Respondent.  This letter, inter alia, requested Garda Sheridan to provide to Mr. Lynam all statements of evidence and exhibits upon which the Prosecution proposed to rely.  It further stated that Mr. Lynam would be obliged if Garda Sheridan would furnish him with copies of Custody Records applicable to the Prosecution.  Garda Sheridan did not comply with the requests set out in the letter and indicated that he had sent this letter to the Chief State Solicitor's Office.

4.	A further letter of the 20th January 1995, addressed to the Chief State Solicitor's Office was put to Garda Sheridan.  Garda Sheridan stated that he had not been aware of the existence or contents of that letter.  This letter referred to the Prosecution scheduled for hearing before Dun Laoghaire District Court on the 3rd March following, indicating that Garda Sheridan had been requested to provide copies of all statements of evidence and exhibits and further that he had been requested to provide copies of the Custody Record, and that letter expressly differentiated between the requests for the statements of evidence and exhibits which Mr. Lynam, Solicitor, appeared to be aware were the subject matter of a decision entitled "D.P.P. -v- Gary Doyle" and the copies of the Custody Records.

5.	A further letter dated the 10th February 1995 from Mr. Lynam, addressed to the Chief State Solicitor, was then put to Garda Sheridan, who indicated that he had not been made aware of that letter nor of its contents.  This letter constituted a reminder in respect of the letter of the 20th January and appeared to have enclosed a copy of that letter for the information of the Chief State Solicitor.

6.	A further letter was then put to Garda Sheridan, dated the 21st February 1995, from the Chief State Solicitor to the Solicitor for the Respondent.  That letter referred to a date, 16th January 1995, when the matter had been listed for mention in Dun Laoghaire District Court and it referred to a request by Mr. Lynam to Mr. Daly, Solicitor, of the Office of the Chief State Solicitor, for copies of relevant statements etc. and to the fact that Mr. Daly had refused to provide same.  A reference was then made to the failure to make any subsequent application to Judge Kirby for the furnishing of the relevant statements etc.  The letter concluded by informing the Solicitor for the Respondent that the Prosecution would not be furnishing him with copies of all items requested in the letter of the 20th January 1995.

	Copies of the said letters are annexed to the within Case Stated and form part thereof.
	
	Mr. Rafferty, Solicitor, indicated upon enquiry that he did not require formal proof of the said correspondence.

7.	At the close of the prosecution case it was submitted on behalf of the Respondent that a specific request had been made for copies of all relevant custody records in the case and that it has been specifically pointed out to the Prosecution that such a request was separate from the not related to the request for statements of evidence and exhibits.  It was accepted by Mr. Lynam on behalf of the Respondent that the case of D.P.P. -v- Gary Doyle (1991) IR provided that in a prosecution such as that before me there was a discretion in the Trial Judge to direct that copies of all statements and exhibits be provided to a Defendant.  Mr. Lynam relied upon Article 24(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 .  He submitted, that the two letters written to the Chief State Solicitor and the letter written to Garda Sheridan had been met with a conscious and deliberate refusal to make any documentation whatsoever available, including the matter to which he was entitled as right.

	Mr. Lynam referred me to the Judgment of Mr. Justice O'Hanlon, delivered on the 8th February 1995, in the case of the D.P.P. -v- Eric Spratt.  He submitted that there had been a deliberate refusal by the State to make the custody records available, which had denied the Defence access to documentation which was directly relevant to the prosecution of the offences before the Court and materially affected the preparation of the defence case.

	Mr. Lynam also referred to the decision of the High Court in the State (Walshe) -v- Murphy (1981) IR 275 and to other relevant decisions regarding a failure on the part of the State to make available, upon request, a copy of the Medical Bureau's Certificate.
	He submitted that the Court had a discretion to dismiss the matters, following the authority of D.P.P. -v- Eric Spratt.  He submitted, therefore, that the Court should dismiss the charge.  He further argued that where there had been a conscious and deliberate breach of the Respondent's rights, the Application to Dismiss was even more compelling.

	Mr. Lynam's second submission related to the fact that the Respondent gave a blood sample after opting for, but being unable to give a urine sample, and this second submission was rejected by me.

8.	In reply, Mr. David Rafferty, Solicitor, argued that the letter from the Chief State Solicitor's Office referred to material covered by the decision in D.P.P. -v- Gary Doyle only.  It had to be seen in context where the Defence had previously sought the Gary Doyle material and had been refused same, in the conversation refer to in the said letter.  In addition that letter was dated the 21st February 1995, and the Defence had done nothing since.  The case had been listed in Court on the 3rd March and no application had been made to the Court for the documentation in question.  The Defence could have sought this material prior to the hearing.

	Mr. Rafferty also submitted that the cases referred to above by the Defence dealt with the Bureau Certificates and Doctor's Certificates and not Custody Records.
	Finally it was submitted that any breach of the Regulations would have to be material to justify a dismissal of the charges brought.

9.	I made the following further finding of fact:-

1	(1)	The Defence had made all proper and reasonable requests for a copy of the custody records as per the correspondence submitted in evidence and that there was no obligation on the Defence to make application to the Court for a document to which it was entitled as a right.

	(2)	The letter from the Chief State Solicitor, dated 21st February, 1995 to the Solicitor for the Respondent, was a conscious and deliberate refusal on the part of the State to make the custody records available to the Defence.  This was a fundamental breach of Article 24(2) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987.

10.	I was satisfied on the evidence that there was not only a breach of the Custody Regulations but a conscious and deliberate breach and that as a consequence I was entitled pursuant to the decision in the case of D.P.P. -v- Eric Spratt to exercise my discretion in favour of the Defence.  I was further satisfied that if I were to convict the Defendant of the charges before me, such conviction must be dependent upon there having been compliance with the basis requirements of natural justice.  I was satisfied that not only had there not been compliance with the basic requirements of natural justice on the part of the State but that the lack of compliance had been material and had been brought about by a deliberate act or omission on the part of the Prosecution and that as a consequence a conviction could not be sustained.  In the light of those circumstances I dismissed the charges before me.

11.	The Appellant herein, being dissatisfied with the said determination in point of law, has requested me to state for the opinion of the High Court the following question:

	(1)	Whether, in light of the aforesaid findings in relation to the breach of Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987, and/or the non compliance on the part of the State with the basic requirements of natural justice which had occurred in the present case, I was correct in law in holding that I was entitled to dismiss the charges brought against the Respondent?

		Dated the 10th day of January, 1995.

		_________________________
		TIMOTHY H. CROWLEY
		JUDGE OF THE DISTRICT COURT."

Ms. Adrienne Egan, Barrister at Law appeared on behalf of the State, made a written and oral submission.  The case was very fully argued before me by Ms. Egan for the D.P.P. and Mr. McDonagh for Mr. Dempsey.  In argument the following cases were opened in addition to the cases mentioned in the Case Stated, namely, Walshe -v- D.J. O'Boachalla, 1991, 1 I.R. 56, The State (O'Regan) -v- District Justice Plunkett, 1984, I.L.R.M. 347, Clune -v- D.P.P., 1981, I.L.R.M. 17, Sweeney -v- District Judge Brophy, 1993, I.R. 202, Healy -v- O'Donoghue, 1976, I.R. p. 325 at 348.  In the case of Walshe -v- District Justice O'Boachalla, 1991, 1 I.R. 56, Blayney J. summarises the need and position which follows:-

	"That evidence obtained following a deliberate and conscientious breach of an accused person's constitutional rights must be excluded only if it had been obtained as a result of that breach.  In the absence of a causative link between the breach and the obtaining of evidence such evidence was admissible (The People (D.P.P.) -v- Healy, 1992 I.R. 73) and (The People (D.P.P.) -v- Shaw, 1982 I.R. 1, considered)."

	If I might quote from Gannon J. in Clune -v- D.P.P., 1981 I.L.R.M. p. 17 at p. 19:-

	"These applications raise very serious and important issues in relation to the powers and functions of this Court.  The arguments in support of them are founded almost exclusively upon the duty, as alleged, of all Courts to respect and apply the principles of justice and fairness in procedure adumbrated in In Re. Haughey, 1971 I.R. 217 and in The State (Healy ) -v- O'Donoghue, 1976 I.R. 325 and the duty, as alleged, of this Court to ensure that such procedure will be followed notwithstanding the absence of statutory requirement or regulation in the District Court.  The concept of guiding, directing, controlling, supervising or correcting lay magistrates which might have been inferred from proceedings of certiorari and prohibition and mandamus prior to the establishment of the State is not appropriate to the Courts established under our Constitution.  The Courts have limited jurisdiction established by legislation pursuant to constitutional authority in that behalf are not in any sense subject to direction, control or supervision by the Superior Courts established by the Constitution.  The statutory Courts are 'inferior Courts' in the sense only that the range of their jurisdiction is limited and defined by legislation.  The Superior Courts are 'superior' in the sense only that their authority derives directly from the Constitution and not from the legislature.  They are constituted as one Court of unlimited jurisdiction and one of final appeal.  The High Court has not only invested but inherent authority to ensure the administration of the law in accordance with the principles of justice and the requirements of the Constitution.  It has the capacity and authority to hear appeals from the Courts of limited jurisdiction and also to remedy errors of abuse or excessive jurisdiction by any of such 'inferior Courts'.  Many of the procedures which were appropriate to the circumstances when the inferior Courts were administered by lay magistrates have been adapted and adopted in relation to our District Courts now administered by fully competent and qualified lawyers, whose independence as Judges, not only from the executive but even from their judicial colleagues, must be respected.  The Justice sitting in the District Court has the sole and exclusive authority to control and supervise the conduct of proceedings in his own Court within the limits of the jurisdiction conferred upon him.  His independence and authority is secure in his freedom not only from pressures of a political executive nature but also from purported intervention, direction or control by any Superior Court.   If he should be in error it is in the interests of the parties to the suit whether the public or private individuals which require the error to be corrected."

	There is no doubt that in the present case the Justice acted within his jurisdiction.
	The question must be, did he make an error in the exercise of that jurisdiction which would justify that it was so fundamental as to warrant an Order of Certiorari, the granting of which amounted to an acquittal?  Gannon J. in The State (Healy) -v- O'Donoghue, 1976 I.R. p. 325 at the bottom of p. 335 states:-

	"Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation to have the matter tried in his presence by an impartial and independent Court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or to call evidence in his defence and to be heard in argument of submission before judgment be given.  By mentioning these I am not to be taken as giving a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence.  The rights I have mentioned are such as would necessarily have a bearing on the result of a trial.  In my view they are rights which are anterior too and do not merely derive from the Constitution but the duty to protect them is classed upon the Courts by the Constitution."

	In the Supreme Court it is held that the provisions of Article 38 of the Constitution in requiring a criminal trial to be conducted in due course of law imports the requirement of a fair procedure which furnish an accused with an adequate opportunity to defend himself against the charges made.  The Solicitor for the Respondent requested statements of evidence and exhibits upon which the prosecution proposed to rely and also copies of the custody records applicable to this prosecution.  Garda Sheridan, the prosecuting officer, did not furnish a copy of the custody records but sent the letter to the Chief State Solicitor's office.  The Solicitor sent to further letters to the Chief State Solicitor.  Finally, a letter was received by the Respondent's Solicitor on the 21st February, 1995 stating as follows:-

	"The writer was present in Dun Laoghaire Court on the 16th January, 1995 last when you requested from him a copy of the relevant statements etc., and he declined to furnish you with same.  The writer noted that you did not subsequently make an application to Judge Kirby for the furnishing of the relevant statements etc.  Accordingly, we will not be furnishing you with copies of all items required in your letter of the 20th ult."

	At the close of the prosecution case, it was submitted that there had been a conscious and deliberate refusal to make any documentation available to the defence including a copy of the custody record to which the defence was entitled as of right.
	It is conceded that the State were in breach of the custody regulations by not producing a copy of the custody record upon request by the Solicitor for the Respondent.  Normal compliance of the custody regulations does not of itself derive to entitlement on the part of the District Judge to dismiss the charge.  Gannon J. states:-

	"The phrase 'of itself' is obviously an important one in the construction of the statutory provisions and I interpret the subsection as meaning that non-observance of the regulations is not to bring about automatically the exclusion from evidence of all that was done instead by the accused person who is in custody.  It appears to be left to the Court of trial to adjudicate in every case as to the impact of the non-compliance which the regulations should have on the case for the prosecution."

	It has been argued verbally by Ms. Egan that the District Judge ought to have applied his mind to the question of what effect that breach had on the Respondent and in particular his ability to meet the charge brought against him.  However, he was entitled to see that document and if his lawyers were equipped with it, it might promote several lines of defence.  The Court has not seen the relevant custody record nor it is necessary for it to do so.  It was previously indicated that the High Court would be very slow to interfere with the learned District Judge in the course of his jurisdiction.  He has heard the evidence; he has assessed it; there was evidence to support his findings; the State admit they deprived the Accused of documents to which he was entitled.  The fact that an Order was not sought from Judge Kirby but in fact there is nothing prejudicial with his defence and the relevant custody records are both irrelevant.  The learned District Judge has obviously given the case considerable attention while another Judge might have come to a different conclusion.  He was well within his jurisdiction to come to the conclusion which he did over the evidence produced before him.  It is found that the State had non-compliance with the basic requirements of natural justice.  In his discretion he was entitled to dismiss the charges brought against the Respondent.