THE HIGH COURT
			2000 1793 SS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857(19 AND 20 VICTORIA CHAPTER 43) AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS 1961)
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS 
				PROSECUTOR/APPELLANT
AND
CLIVE CLARK 
				ACCUSED/RESPONDENT
JUDGMENT delivered by the Honourable Mr. Justice Johnson on the 31st day of May   2001.
	This case arises from a case stated by Judge Maughan of the District Court on the 25th of October, 2000, wherein the question was posed as to whether Judge Maughan was correct in law, in dismissing the charges brought against the Defendant under Section 49 of the Road Traffic Act on the ground that he found that the custody records mis-described the offence in respect of which the Respondent had been arrested and taken into custody.  
	The statutory provisions relating to the allegations of the Garda Siochana to record matters in the custody record are set out in Statutory Instrument no. 119 of 1987, being the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987.  In that regulation the relevant paragraph is No. 6 which read as follows:-
6.1 	A record (in these regulations referred to as the custody record) shall be kept in 		respect of each person in custody.
6.2	A member in charge shall record or cause to be recorded in the custody record as soon 	as practicable such information as it required to be recorded by these regulations.  		Each entry in the record should be signed or initialled by the member making it.  
6.3	Where a person in custody is transferred to another station, the member in charge of 		the station from which he is transferred shall send with him the custody record 		relating to him or a copy of it, to the member in charge of that other station.
6.4	Without prejudice to the responsibility of any other member for the accuracy and 		completeness of any entry which he has made in a custody record, the member in 		charge shall be responsible for the accuracy and completeness of all entries made in 		the custody record while he is the member in charge.  
7.1	In relation to an arrested person a record shall be made of :-
	a.	The date, time and place of arrest and the identity of the arresting member (or 			other person effecting arrest), 
b.	The time of arrival at the station,
c.	The nature of the offence or other matter in respect of which he was arrested, and
d.	Any relevant particulars relating to his physical or mental condition.
	The other portions of paragraph 7 does not apply in this case.  
	Paragraph 8 subsection 1 states the member in charge shall without delay inform an arrested person or cause him to be informed in ordinary language of the offence or other matter in respect of which he has been arrested, and that he is entitled to consult a Solicitor.  
	The other matters in that section do not relate to the present case.  The facts were in this case as appears in the case stated:- 
A.	At approximately 1.05 a.m. on the 11th of January, 2000 one Gerry McEntee of Plush, Belturbet was sitting in the driving seat of a red carina motor car registration number 90 MH 1062 at Corporation Lands, Belturbet when he felt a bump from behind and heard a bang.  He got out of his car and saw that the Respondent who was driving a red corolla motor vehicle registration number 92 CN 110 had collided with the rear of his car.  
B.	At about 1.08 a.m. on the same date Sergeant James McGuinness a member of the Garda Siochana attached to the Belturbet Garda station, County Cavan was on duty at Corporation Lands, Belturbet, a public place in the company of Detective Garda Fitzgerald and Sergeant Cassidy when he came upon the scene.  He saw the motor vehicle registration number 90 MH 1062 had sustained damage to the rear whilst motor vehicle registration number 92 CN 110 displayed damage to the front.  Both Mr. McEntee and the Respondent admitted to having driven their respective vehicles.
C.	In the course of his conversation with the Respondent Sergeant McGuinness detected a smell of intoxicating liquor from his breath.  Sergeant McGuinness formed the opinion the Respondent had consumed intoxicating liquor.  Then Sergeant McGuinness assembled an apparatus for indicating the presence of alcohol on the breath, in the Respondent’s presence, and required him to provide a specimen.  On so doing the apparatus recorded a positive result.  As a result of this test and his observations, Sergeant McGuinness formed the opinion that the Respondent was under the influence of an intoxicant to such an extent as to be incapable of proper control over a vehicle.  
D.	At 1.15 a.m. Sergeant McGuinness informed the Respondent that he was arresting him under Section 49(8) of the Road Traffic Act 1961 to 1994 for having committed an offence contrary to Section 49 subsection 3 of the Road Traffic Acts 1961 to 1994.  He also informed the Respondent in ordinary language that he was being arrested for drunken driving.  The Respondent was conveyed to Ballyconnell Garda station by patrol car and arrived there at 1.27 a.m.  The Respondent was introduced to Garda Brian Doyle the station orderly and member in charge.  Garda Doyle completed the custody record in respect of the Respondent.  In Section B of the custody record under the heading offences or other matter in respect of which arrest was made Garda Doyle inserted the word Section 49 subsection 8 Road Traffic Act.  Subsequently thereafter a Doctor was called and the Respondent gave a sample of his blood and as a result thereof found to be positive.
	This was all given in evidence and at the conclusion of the Appellant’s case Mr. Kelly on behalf of the Respondent submitted inter alia that Garda Doyle had recorded the offence in respect of which the Respondent had been detained as Section 49 subsection 8 of the Road Traffic Act 1961 to 1994 and that that subsection only gave power of arrest and did not describe the offence in respect of which the Respondent had been arrested.  Sergeant McGuinness pointed out that the Respondent had been arrested under Section 49 subsection 8 of the Road Traffic Act 1961 to 1994 for offences contrary to Section 49 subsection 2 or 49 subsection 3 of the Road Traffic Acts 1961 to 1994.
	It is submitted by the Applicant that the reference in the custody record Section 49 of the Road Traffic Acts 1961 to 1994 was a sufficient description of the offence for which the Respondent had been arrested.  Section 49 subsection 8 of the Road Traffic Act states as follows:-
“A member of the Garda Siochana may arrest without a warrant a person where the member’s opinion he is committing or has committed an offence under this Section.”

 No reference was made in the case stated to Section 8 of the regulations as to whether or not they had been complied with but having regard to these circumstances.  I have presumed they were complied with and therefore a member in charge had told the Respondent in ordinary language the offence for which he was being detained.  It was submitted on behalf of the Applicant that the descriptive reference in the custody record of Section 49 subsection 8 of the Road Traffic Act was sufficient to comply with the requirements of Section 7 paragraph C namely the nature of the offence or other matter in respect of which the accused was arrested.  I accept that the reference in the custody record of Section 49 subsection 8 of the Road Traffic Act 1961 was sufficient to convey to the attention of the accused the nature of the offence or other matters in respect of which he had been arrested and therefore complied with the requirements of the regulations.
However that is not the end of the matter.  Section 7 of the Criminal Justice Act 1984 also provides that a failure on the part of any member of the Garda Siochana to observe any provisions of the regulations shall not of itself render that person liable for criminal or civil proceedings or of itself effect the lawfulness of the custody of any detained person or the admissibility of evidence of any statement made by him.  
Therefore it is quite clear that even if the insertion of Section 49 subsection 8 as opposed to Section 49 subsection 2 was a failure to observe the provision of the regulations, it is equally clear from the statute that in itself is not a fatal error but requires the Judge to exercise his discretion as to whether or not such a failure should render unlawful the custody of the obtained person or the admissibility of any evidence of any statement made by him.
In my view having regard to the terms of the case stated the learned Judge did not exercise his discretion in this matter but appears to have taken it that he had no option but to dismiss the case.
The learned Trial Judge had exercised his discretion then he should have had in mind the cases of the DPP -v- Spratt I.L.R.M. 1995 volume 2 at p. 123 wherein Mr. Justice O’Hanlon quoting with approval the case of Walsh -v- O’Buachalla 1991 I.R. p. 56 applies the same principles and in that case Mr. Justice Blayney refusing an application for Judicial Review stated and I quote:-
“That evidence obtained following a deliberate and conscious 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 the evidence such evidence was admissible.”

Having regard in my mind the Judge did not exercise his discretion in determining this case therefore for both those reasons I find he was not correct in law in dismissing the said charge.