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1. This matter comes before this Court by way of a Case Stated by Judge James O'Sullivan sitting at Borrisokane District Court, pursuant to Section 2 of the Summary Jurisdiction Act, 1857, as extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961 on the application in writing of the Appellant for the opinion of the High Court as to whether the determination of the above proceedings was erroneous in point of law. I propose to quote the Case Stated in full so that it may be clear as to what the facts are and the points in issue and in particular what precise findings were made or not made by the learned Judge. The Case Stated reads as follows:-

2. The salient features would appear to be that the Respondent was summonsed to appear before District Judge O'Sullivan in relation to the charge of drunk driving, contrary to Section 49(2) and (6)(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994, as amended by Section 2 of the Road Traffic Act, 1995. Evidence was given by the prosecuting Garda, Garda Dillon, in relation to the Respondent's driving and general demeanour which culminated in the formation of an opinion by the Garda that the Respondent had consumed an intoxicant to such an extent that he was incapable of having proper control of a mechanically propelled vehicle in a public place. Garda Dillon then arrested the Respondent under the provisions of Section 49(8) of the Road Traffic Act, 1961/1995 for drunken driving.

3. Garda Dillon conveyed the Respondent to Borrisokane Garda Station arriving there at 2.10 a.m. Apparently on arrival at Borrisokane Garda Station, Garda Dillon assumed the functions and duties of a member in charge as regards the Respondent pursuant to the Criminal Justice Act, 1984 (treatment of persons in custody) Regulations, 1987. Garda Dillon handed the Respondent a Notice of Rights but he did not respond. Garda Dillon stated in his direct evidence that he complied with the necessary provisions of the Criminal Justice Act, 1984 (Treatment of Persons in Custody) Regulations, 1987. Under cross-examination by Counsel for the Respondent, Garda Dillon stated that he did not read the Notice of Rights to the Respondent but that he did hand it to the Respondent who did not respond and who did not sign the custody record in respect of the receipt thereof. When it was put to Garda Dillon that it was his obligation, as member in charge, to read the Notice of Rights to the Respondent, Garda Dillon replied that he did not see any point in explaining the rights to the Respondent because the Respondent would not have understood due to his intoxicated condition. It was also suggested to Garda Dillon that there was an inconsistency in his evidence as regards the Respondent's capacity to understand in that he, Garda Dillon, had accepted when asked by Counsel that the Respondent had understood the requirement made by the Garda to provide a sample of blood or, at his option, a specimen of his urine and had understood the consequences of a failure or refusal on his part to comply with such a requirement. It was pointed out to Garda Dillon that a short time previously he had chosen not to inform the Respondent verbally in ordinary language of his rights as a person in custody under the Custody Regulations because the Respondent could not understand such rights due to his condition. No explanation was given for this inconsistency.

4. Secondly, it was suggested to Garda Dillon that there was a conflict of interest in relation to the roles which he had performed in that he had acted as arresting and investigating Garda and also had carried out the duties of the member in charge. Garda Dillon responded that his obligations would be the same in regard to the interests of the person in custody. Garda Dillon also agreed that it might have been practicable to get another Garda to act as member in charge but he did not do this as this would have delayed the procedure, thereby infringing the Respondent's rights. I should interject that it is clear from the general tenor of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987 (S.I. No. 119 of 1987) that there should be no unnecessary delay in dealing with persons in custody (see Regulation 3); and Regulation 4(3) states that "as far as practicable, the member in charge shall not be a member who was involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence". Thus the need not to have unnecessary delay in dealing with a person in custody and the practicability of securing the attendance of another Garda at Borrisokane Garda Station at 2.10 a.m. on the 29th March, 1996 are relevant to the situation.

5. At the close of the prosecution case, Counsel for the Respondent sought a dismissal of the charge on grounds which can be summarised as follows:-

6. Superintendent Ludlow, appearing on behalf of the Appellant, submitted that the failure of Garda Dillon to read the Notice of Rights did not invalidate the prosecution or deny the Respondent his rights under the Regulations. He further submitted that the offence for which the Respondent was in custody was not comparable to criminal offences where the member in charge would have decisions to make with regard to detention and questioning so that a conflict of interest between his duties as investigating Garda and member in charge might arise. In this particular type of case, the Respondent did not have any option except to comply with the requirement made by Garda Dillon under the stipulations in the Road Traffic Act, and accordingly there was no question of unfair exercise of discretion by reason of conflicting roles.

7. Thirdly, Superintendent Ludlow stressed that Regulation 4 in respect of the "member in charge" stipulates that as far as practicable, the member in charge shall not be a member who is involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence. The Superintendent stressed that the phrase "as far as practicable" was relevant and it was common case that the nearest available Garda Station was in Nenagh which was about ten miles away, entailing a round trip of 20 miles in the small hours of the morning.

8. On the basis of these circumstances the learned District Judge held that there had been breaches of the Custody Regulations which left him with the discretion to exclude evidence obtained thereafter. He exercised his discretion to exclude evidence as to the concentration of the sample provided by the Respondent and dismissed the charge.

9. The opinion of the High Court is sought as to the following two matters:-

10. When additional powers of detention were given to the Gardaí under the Criminal Justice Act, 1984 these were introduced subject to additional safeguards for those who are being detained and denied their liberty. Some of these safeguards were embodied in the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987 and relevant to this first issue is Regulation 8 which provides:-

11. There was ample evidence on the basis of which the learned Judge found that the Garda, in his role as member in charge, was in breach of Regulation 8(1) in that he failed to inform the Respondent orally of his right to consult a solicitor and to have notification of his being in custody sent to another person reasonably named by him. It is conceded by the Appellant that the fact that Garda Dillon was of the view that there was no point in imparting this information to the Respondent due to his condition does not absolve him from this breach. However, the Appellant's contention is that non-compliance with the Custody Regulations does not of itself entitle the learned Judge to dismiss a charge of this nature. The Appellant cites Section 7(3) of the Criminal Justice Act, 1984 and the case law thereon for the proposition that paragraph 5 of the Case Stated is an explicitly incorrect statement of the law to be applied in the circumstances.

12. The Criminal Justice Act, 1984 is the basis for the above regulations. Section 7 deals with regulations regarding treatment of persons in custody and Section 7(3) provides:-

13. This provision in the Custody Regulations was considered by O'Hanlon J. in DPP -v Spratt - a consultative Case Stated reported at [1995] 1 IR 585 which was cited before the learned District Judge. Spratt's case concerned a charge of refusing to comply with the requirement of the Garda Doctor in relation to the provision of a sample of blood or urine following upon an arrest under Section 49 of the Road Traffic Act, 1961 as amended. In that case, it was not established in evidence before the District Court Judge that the provisions of Articles 8 and 9 of the Regulations had been complied with, although there was no affirmative evidence which tended to suggest that they had not been complied with. While this is undoubtedly a distinguishing feature from the present case, nevertheless the views expressed by O'Hanlon J. are of assistance. First, he held that the Regulations made under Section 7 of the 1984 Act, should be regarded as applicable in relation to persons arrested under Section 49, subsection (6) of the Road Traffic Act, 1961 as amended. He went on to consider whether non-compliance with the Regulations and particularly Article 8 thereof rendered the custody of the accused unlawful notwithstanding the provisions of Section 7, subsection (3) of the Criminal Justice Act, 1984 which is set out above. O'Hanlon J. at page 591 said :-

14. O'Hanlon J. went on to consider the decision of Blayney J. in Walsh -v- District Justice O'Buachalla [1991] 1 IR 56 which concerned a charge brought under Section 49 of the Road Traffic Act, 1961 as amended. The applicant sought to have his conviction quashed in reliance on evidence that just before the relevant blood specimen was taken in the station, he had asked to see a solicitor but compliance with his request was deferred until after the specimen had been taken. He had been given notice of his right to consult his solicitor and had also been given access to a telephone for this purpose some forty minutes before the arrival of the Doctor to take the blood specimen, but did not choose to avail of his rights in the period which intervened before the arrival of the Doctor. It was held by Blayney J., refusing his application for Judicial Review:-

15. At page 592 O'Hanlon J. commented:-

16. Counsel for the Appellant submits that applying these principles to the present case it is clear that the failure on the part of the Garda to comply with the provisions of Regulation 8 did not, of itself, result in the specimen being taken. The Respondent was under a duty to provide the specimen and the oral notification to him of his right to have a solicitor or another person notified of his presence in the Garda Station would not have affected this obligation. In these circumstances it is difficult to envisage how the Respondent was prejudiced by the failure to inform him verbally of his rights. The anxiety of the District Judge at the breach of the Regulations is understandable but the wording of the Case Stated, and in particular paragraph 5 thereof, does not indicate in what way or whether the Respondent was in fact prejudiced by the suggested breach of the Regulations.

17. Counsel also pointed out that the Respondent was handed a Notice of Rights which included the two rights which were required to be brought to his attention by way of oral information. Perhaps the Respondent may have been more receptive to the written than to the verbal alerting to his rights but this point is not influential.

18. Counsel on behalf of the Respondent agreed that on foot of the decision in DPP -v- Spratt , the trial Judge had a discretion in each case as to the effect of proven non compliance with the Regulations by the member in charge and as to the effect which this should have on the admissibility of evidence obtained under such a breach whilst the accused person remained in detention. He stressed that the trial Judge had the opportunity of hearing the Garda witness and of observing his demeanour and responses in cross-examination and thus was in a position to decide whether the interests of justice required him to exclude or admit evidence obtained after a breach of the Custody Regulations had been established. He also submitted that the trial Judge must be entitled to consider the particular nature of the breach of the Custody Regulations and the explanation offered for this by the member in charge. All this is correct but, on the basis of the impression made on him by the evidence, the District Judge must go on to apply the law as set out in Section 7 and the cases cited by adjudicating as to what impact the non-compliance with the Regulations has had on the case for the prosecution. I should add that there is no suggestion in the Case Stated that the District Judge formed the view that he was dealing with a conscious and deliberate violation of the Respondent's rights or of the Custody Regulations or that reprehensible or oppressive behaviour on the part of the Garda tainted the entire prosecution case. Accordingly, on this issue, in view of the words of the statute and the statements of O'Hanlon J. and Blayney J. in respect of the case law, it seems to me that there was no actual adjudication on the impact of the breach of the regulations on the admissibility of the evidence subsequently obtained against the Accused and that, accordingly, the learned District Judge was wrong in dismissing the charge on this basis. I should add that it would be for the District Judge to make such findings as are appropriate in the light of the guidelines and quoted statements as to the law and then to come to his conclusion in the light of his findings made in accordance with law.

19. The question suggests three separate roles of arresting, investigating Garda and member in charge. It is quite normal for a Garda who investigates a drunk-driving offence to effect an arrest under Section 49(8) of the relevant Act. The distinction in role would appear to be between the role of the investigating and arresting Officer and the role of member in charge. I infer from the Case Stated that there was no other member of the Garda Siochana available in Borrisokane Garda Station and that contacting a Garda in Nenagh Garda Station, some ten miles away, and requesting this Garda to come to Borrisokane Garda Station to carry out the role of member in charge would have entailed a delay involving further deprivation of liberty on the part of the Respondent. While the wording of the Statute and Regulations are of importance, nevertheless the Court can take into consideration the situation in rural Ireland where there are still Garda Stations with one or two Gardaí. The local Garda Station is one of the great institutions of the Irish countryside and is a strong influence in preventing rural crime and breaches of the peace. A local Garda knows and is known by the community and by advice and by presence in the village and the surrounding countryside influences support for the rule of law.

20. The relevant regulation is Regulation 4 of the Custody Regulations which provides:-

21. Counsel for the Appellant stresses the phrase " as far as practicable " and says that this indicates that a Garda is not prohibited from acting as both arresting and investigating member and as member in charge but should not do so if it is practicable to have another member perform the duties of the member in charge. Regulation 8 requires that the member in charge shall, without delay, give certain information and carry out other duties in relation to the person detained. Counsel for the Appellant submits that it would have been inappropriate and impracticable in view of the time constraints for Garda Dillon to delay the process in order to contact another Garda who would have been on duty in Nenagh, some ten miles away and presumably with other duties to attend to in that town. Counsel for the Respondent submits that Regulation 4(3) sets out an important demarcation between two distinct roles so as to ensure that the member of the Gardaí acting as member in charge is not compromised in his role as guarantor of the rights of accused persons in custody by active participation in the investigation. He further submits that it was practicable to obtain another Garda to act as member in charge and that there was a failure to obtain the assistance of another Garda to act as member in charge.

22. Consideration should have to be given to the effect of Garda Dillon assuming the role of member in charge in the matter as well as being the investigating Garda and as to whether the Respondent was in any way prejudiced thereby. There was no adjudication by the District Judge as to whether any prejudice stemmed from this assumption of both roles. Paragraph 5 indicates a finding that there was a breach of the Regulations but does not go on to indicate any findings with regard to prejudice caused thereby nor does the need for expedition of processing of a person in detention seem to have been taken into account in considering the practicability of obtaining another Garda to act as member in charge in the small hours of the morning in Borrisokane Garda Station.

23. Counsel for the Appellant correctly submits that the member in charge has a regulatory function only and in the case of detention for drunk-driving the member in charge's role can be distinguished from that of the member in charge where an arrest is followed by a detention under Section 4 when the member in charge is required to exercise a separate discretion as to whether the detention is required. In a prosecution being brought under Section 49 of the Road Traffic Act, the accused person, having been arrested under that section, is required to attend at the Garda Station for the purpose of the provision of a specimen, and it is not up to the member in charge to decide whether or not this detention is necessary.

24. While it is clear from paragraph 3 of the Case Stated that Counsel for the Respondent did submit that the sample obtained by Garda Dillon in the course of his investigation of the alleged offence had been obtained as a direct result of a breach of the Custody Regulations and that there was a clear causal connection between the breach and the obtaining of evidence against the Respondent, there does not seem to be implicit or explicit statements in the Case Stated which would indicate that the learned Judge did make findings on and adjudicate about matters of prejudice on the guidelines suggested by the cases cited. Accordingly, on the precise wording of the Case Stated before me, in the absence of further findings with regard to prejudicial matters arising out of the dual roles of Garda Dillon, the second question should be answered in the negative. Again, this is a narrow decision on the specific question asked. I add the proviso that it would be for the learned Judge to make findings on the evidence in accordance with the statute, the regulations thereunder and the guidelines in the cases cited.

25. In the light of these findings I will hear Counsel as to the precise nature of the Order to be made.