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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Cabot [2004] IEHC 79 (20 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/79.html Cite as: [2004] IEHC 79

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HC 153/04

THE HIGH COURT

2002 68 SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISONS) ACT, 1961

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and- REDMOND CABOT

Accused

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 20^th April, 2004.

This is a consultative case stated dated the 3^rd December, 2001 signed by William Hamill, a judge of the District Court assigned to the Dublin Metropolitan District, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961 in a prosecution against the defendant on a charge of being a person arrested under s. 49 (8) of the Road Traffic Act, 1961 (as amended), having been required by Michael Quinn, a member of An Garda Síochána at Pearse Street Garda Station, pursuant to s. 13 of the Road Traffic Act, 1994 to provide two specimens of his breath did refuse to comply forthwith with the said requirements contrary to s.13 (2) of the Road Traffic Act, 1994 (hereinafter referred to as 'the Act of 1994')

The case stated recites that the prosecutor (hereinafter referred to as 'the Director') was represented by Seamus Cassidy, a solicitor of the Office of the Chief State Solicitor and the accused was represented by Paul Burns of counsel instructed by Garrett Sheehan & Co., solicitors.

The case stated recites the facts as proved in evidence in the District Court.

On 28^th day of March, 2000 the accused was arrested pursuant to s. 49(8) of the Road Traffic Act, 1961 on suspicion of having committed an offence under subsections 1, 2 or 3 of that section. He was brought to Pearse Street Garda Station, where he was introduced to the member in charge and sought to contact a lawyer whose name he provided. However, despite the efforts of the Garda Síochána to contact the named lawyer such contact could not be made. The accused was provided with a Form C72 dealing with his rights while in custody. The accused was brought to the doctor's examination room and required by a member of An Garda Síochána, pursuant to s. 13(1)(a) of the Road Traffic Act, 1994 to provide two specimens of his breath by exhaling into an apparatus designed for determining the concentration of alcohol in his breath and was informed that failure or refusal to comply with the requirement was an offence under s. 3(2) of the Road Traffic Act and the penalties on summary conviction for such an offence were outlined to him. The accused provided one specimen of his breath but declined to provide a second specimen. He was reminded that such refusal was an offence and the penalties were outlined again to him, but he continued to decline to do so. The garda then took it that the accused was refusing to give the specimens and the accused was charged accordingly. Throughout his time in the garda station, the accused repeated his request to make contact with the named lawyer, although such contact could not be established despite the efforts of An Garda Síochána and the accused to do so.

At the close of the prosecution case, counsel on behalf of the accused sought a direction on the grounds that in a case of an alleged refusal, such as that at issue in this case, it is incumbent on the member of the garda station to inform the arrested person that a special or substantial reason for a refusal or a failure to give a sample would not in itself afford a defence to a prosecution for refusing or failing to provide a breath specimen unless (i) the person should as soon as practicable after such refusal or failure comply with a requirement under s. 13 in relation to the taking of a specimen of blood or the provision of a specimen of urine or (ii) the person shall offer to so comply but was not required to do so.

Counsel on behalf of the accused submitted as follows to the District Court:

(a) That s. 13(2) is expressly stated to be subject to the provisions of s. 23. He submitted that s. 23 represents a new and radical change from what had been the law prior to 1994. Prior to 1994, a person who, for a special and substantial reason, refused or failed to comply with the requirement to provide a blood or urine specimen had a complete defence to a prosecution under the equivalent of s. 13(2). The 1994 Act introduced a new dimension to the defence of special and substantial reason in respect of breath specimens by placing an onus upon the arrested person to comply with the requirement in respect of blood/urine if so required or to offer to do so if not so required. The prisoner is therefore placed in a position whereby having refused or failed to provide a specimen for a special and substantial reason, he will nevertheless be guilty of an offence under s. 13(2) where no requirement to provide blood/urine was made of him and he did not offer to provide blood/urine as soon as practicable after his refusal to provide breath specimens.

(b) That whether a reason for refusing or failing to comply with the requirement was or is a special and substantial reason is and always has been a matter for the court to determine and not a matter for the Garda Síochána to determine.

(c) That by incorporating the concept of the arrested person having to comply with a requirement in respect of blood/urine or to offer to do so, s. 23(1) implies that the arrested person should be made aware of his obligation to comply with a requirement in respect of blood/urine and his obligation to offer to do so where no such requirement is made.

(d) That in order to provide substantive and procedural fairness to the arrested person who refuses or fails to comply with a requirement under s. 13(1)(a), the arrested person should be informed by a member of An Garda Síochána not only that he is under an obligation to comply with the requirement subject to penal sanction, but also that if he is refusing or failing to comply with the requirement to provide two specimens of breath for a special and substantive reason, then he must comply with a requirement in respect of blood/urine if so required or offer to so comply even if not required to do so. It was submitted by counsel on behalf of the accused that any other interpretation placed upon s. 23 would result in significant unfairness, both substantive and procedural to the arrested person.

(e) That it would place an undue onus upon the arrested person to be required to offer to comply with a requirement in respect of blood/urine in circumstances where no reference or mention had been made to blood/urine by the Garda Síochána and the arrested person should not be expected to appreciate the necessity to do so or the significance of a failure to make such an offer.

It was submitted by Mr. Cassidy on behalf of the Director to the District Court

(a) that the Act did not expressly require the arrested person to be so informed;

(b) that this would place an undue onus on the garda making the requirement of the accused;

(c) that it was sufficient for the court to look after the accused's interest in this regard in appropriate cases.

Judge Hamill indicated to the parties that on his interpretation of s. 23 it would appear that a person who for special and substantial reason appears to have failed to give a breath specimen could nevertheless be guilty of an offence if he did not comply with the requirement to give blood or urine or offer to do so where no such requirement was made of him. Judge Hamill indicated that the requirement to offer to give a blood or urine sample where no such requirement was made of him appeared to be unfair when he was not informed of the consequences of failing to make such an offer.

Judge Hamill reserved his decision and the matter was adjourned on a number of occasions and written submissions were furnished on behalf of the Director and the accused, which submissions are appended to the case stated.

On the 22^nd May, 2001 Judge Hamill reserved his decision on the matter pending the determination of this case stated and granted carriage of the case stated to the Chief State Solicitor.

The opinion of this court is requested on the following questions:

(a) Where a person has been arrested under s. 49 (8) of the Road Traffic Act, 1961 and has been required by a member of An Garda Síochána, pursuant to s. 13 (1) (a) of the Road Traffic Act, 1964, to provide two specimens of his breath and refuses or fails to do so, is it incumbent on the Garda Síochána to inform the arrested person that a special and substantial reason for such refusal or failure will not of itself afford a defence to a prosecution for refusing or failing to provide such breath specimens unless (i) the person should as soon as practicable after such refusal or failure comply with a requirement under s. 13 in relation to the taking of a specimen of blood or the provision of a specimen of urine or (ii) the person shall offer to so comply even if not so required to do so;

(b) In a prosecution for an offence under s. 13 (2) of the Road Traffic Act, 1994 of failing to comply with a requirement to provide two specimens of breath, should the prosecution prove that the accused was informed as set out at (a) above?

Submissions

On behalf of the accused, it is submitted by Mr. Burns of counsel that s. 23 of the Act of 1994 represents a new and radical departure from what had been the law prior to 1994, where a person who for a good and substantial reason refused or failed to comply with the requirement to provide the relevant specimen(s) had a complete defence to a prosecution under the equivalent section to section 13 (2).

Counsel submits that what amounts to a special and substantial reason is and always has been a matter for the courts to determine. Counsel submits that the Act of 1994 introduces a new dimension to the defence by placing an onus on the person arrested to comply with a requirement in respect of blood or urine, if so required, or to offer to do so if not so required. It is submitted that the person is therefore placed in a position whereby having failed or refused to provide a specimen for a special and substantial reason , he will, nevertheless, be guilty of an offence contrary to s. 13 (2) of the Act of 1994 where no requirement was made of him to provide blood or urine and he did not offer to provide blood or urine as soon as practicable after his refusal to provide breath specimens.

It is submitted that by incorporating the concept of the arrested person offering to comply with a requirement in respect of blood or urine, s. 23(1) implies that the arrested person should be made aware of his obligation to comply with a requirement in respect of blood or urine and his obligation to offer to do so.

Counsel refers to Director of Public Prosecutions v. McGarrigle [1996] 1 I.L.R.M. 271 where Finlay C.J. indicated, inter alia, that an arrested person had a right to be informed of his legal obligations subject to penal sanction, to comply with the requirement in question. He indicated further that "the obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique exception to the general principles of our criminal code which protects accused persons against involuntary self incrimination."

Counsel submits that in that case the Supreme Court made it clear that before a person could be convicted of refusing or failing to comply with the requirement to give a specimen, the person had to be informed of his legal obligation to do so subject to penal sanction. It is submitted that the Supreme Court was of the opinion that it would be both substantively and procedurally unfair to regard a person as having committed an offence of failing or refusing to comply with the requirement, when he had not been informed that he had an obligation to comply with such requirement subject to penal sanction.

Counsel submits that the requirement found to exist by the Supreme Court in Director of Public Prosecutions v. McGarrigle [1996] 1 I.L.R.M. 271 was one inferred by the court in order to give substantive fairness to the procedures provided for in the section. Counsel submits that applying the same approach in the instant case to provide for substantive and procedural fairness that an arrested person in the position of the accused should be informed by the member of An Garda Síochána, not only that he is under an obligation to comply with the requirement subject to penal sanction, but also that if he is refusing or failing to comply with the requirement to provide two specimens of breath for a special and substantive reason, he must comply with the requirement in respect of blood/urine, if so required, or offer to so comply even if not required to do so. Counsel submits that any other interpretation placed upon s. 23 would result in significant unfairness, both substantive and procedural , to the arrested person and would impose an undue onus upon the arrested person to offer to comply with the requirement in respect of blood or urine in the circumstances where no reference or mention has been made to blood or urine by the member of An Garda Síochána and the arrested person could not reasonably be expected to appreciate the necessity to do so or the significance of a failure to do so. Counsel submits that the presumption that one is presumed to know the law is of no application in this case and submits that it did not preclude the Supreme Court in Director of Public Prosecutions v. McGarrigle from indicating the nature of the advice that must be given by a member of An Garda Síochána in making a requirement to provide blood or urine under the Act.

Counsel indicated two possible interpretations to be given to the Act and the provisions of s. 23 (1) of the Act of 1994, namely, where a person fails or refuses to provide two breath specimens when required by a member of An Garda Síochána, he should then be required by a member of An Garda Síochána to permit the taking of a blood sample or to provide a urine sample at his option, or if the garda is under no obligation to require blood or urine and does not make such a requirement, the person must of his own initiative offer to do so or he shall have no defence to a prosecution for failing to provide the breath specimens. Counsel submits that the former interpretation is in accordance with the requirements of procedural fairness arising under the Constitution.

On behalf of the Director it is submitted by Mr. Diarmuid Rossa Phelan of counsel, having referred to the provisions of s. 13 (1) (a) of the Act of 1994 that on the facts of the instant case the gardaí warned the accused that the refusal to provide a second breath sample could result in a prosecution and that no issue arises in this regard. Counsel notes that the accused did provide one sample but refused to provide a second sample of his breath. Throughout the time in the garda station the accused repeated his request to make contact with a named lawyer although such contact could not be established despite the efforts of An Garda Síochána and of the accused. Counsel submits that it is not clear whether it is being alleged by the accused that this inability was relevant to his refusal to give a second breath specimen. Counsel submits that there is no logical connection established on the facts.

Having referred to s. 23 of the Act of 1994, counsel refers to the fact that the accused asserts that he is prejudiced because he did not know that he could avoid prosecution for failure to provide a breath specimen if he had a substantial reason not to and he gave a blood or urine sample. Counsel submits that the issue of prejudice does not in fact arise on the facts because there was no substantial reason advanced either at the time or in the District Court for the refusal to provide a second sample. Counsel submits that the purpose of providing for an offence for a failure to give a sample is to catch those offenders who refuse to co-operate in providing the evidence required to establish the offence of drunken driving as now defined by reference to concentrations of alcohol in the body of an accused. Because of the definition of the offence of drunk driving in its present scientific manner, it is necessary to receive physical evidence from a suspect to make out the offence.

Counsel submits that the defence in s. 23 is not such as to allow a suspect to escape the obligation to provide any sample, but one which operates only where the suspect, for a substantial reason, does not provide a breath sample but does provide another sample.

Counsel submits that there is no indication that there was any intimation to An Gardaí Síochána that the accused had a difficulty associated with the provision of a sample of breath, as distinct from a difficulty with the provision of a sample at all. On this basis counsel submits that the ground did not appear to have been set for the taking of alternative samples. Counsel submits that there is no authority for the proposition that the prosecution is under an obligation to provide a suspect by way of warning, prior to any statement or act of the suspect, with a comprehensive list of possible defences.

Counsel submits that the situation may be different where a suspect indicates that he is unable too provide a sample of breath as such, for example, because of some respiratory complaint. Counsel submits that in such circumstances the gardaí may be under an obligation to provide an alternative to the suspect. Counsel submits that in such circumstances the warning would be in the same form as a warning given to the applicant in this case, namely, that the failure to provide a blood sample or a urine sample could result in prosecution. Counsel submits that even in such circumstances the warning would not comprise some sort of section 23 warning.

Counsel submits that this case turns on:

(a) the fact that there was no reason at the time in the garda station to think that there was any substantive reason for the failure to provide a breath specimen and none was advanced and

(b) the absence of any statutory requirement to give the warning which the accused now claims as of right and

(c) the coherence of the statutory scheme and the incoherence of the statutory interpretation which the applicant now seeks to foist on it.

Counsel submits that the defendant in this case failed to show to the District Court a substantial reason why he did not comply with the requirement to provide two breath specimens. Counsel submits that a requirement for a warning such as contended for by the accused in this case might allow defendants to avoid compliance with the Act.

Counsel submits that the first question posed in the case stated is ambiguous in nature. Counsel submits that any answer to this question should indicate that an accused must show that he had a special and substantial reason for his refusal or failure to comply with the requirement made of him to provide two breath specimens. Counsel submits that for the defence to apply under s. 23 an accused must offer to give blood or a urine sample.

Having heard submissions from counsel, I sought the assistance of counsel as to the meaning of the phrase in section 23 (1) of "a requirement … in relation to the taking of a specimen of blood or the provisions of a specimen of urine". Counsel for the accused submits that s. 23 (1) of the Act of 1994 is concerned solely with the prosecution of persons under s. 13 for refusing or failing to comply with a requirement to provide two specimens of breath and that the sub-section has no application to or relevance to prosecutions for failing to permit the taking of a blood sample or to provide a urine sample.

Counsel submits that it is clear that while a member of An Garda Síochána may require an arrested person to provide two specimens of his breath, this does not prevent him subsequently also requiring the person to permit the taking of a blood sample or at the arrested person's option, to provide urine. Counsel submits that s. 13 further provides that where the garda may have decided to opt for one or other of the requirements as to breath or blood/urine, the doctor may state that he is unwilling on medical grounds to take or be provided with such sample and in such case the Gardaí may then make a requirement for the alternative specimen.

Counsel submits that it appears, nevertheless, that the requirement must be made by a member of An Garda Síochána. The doctor may make specific requirements in relation to the manner in which blood is to be taken or urine provided, such as indicating from what part of the body the blood sample is to be taken and subs. 13 (3) makes it an offence not to comply with such a requirement of the doctor, but the primary obligation to provide a specimen is an obligation pursuant to a requirement of a member of An Garda Síochána. Counsel submits that it should be noted that the doctor has no input into the breath specimen procedure and no doctor is in fact used in relation to the taking of a breath specimen.

Counsel submits that the reference to "requirement" towards the end of s. 23 (1) is a reference to a requirement made by a member of An Garda Síochána as no doctor's requirement could arise in respect of the taking of blood or the provision of urine until a requirement to so permit the taking or provide the urine has been made by a member of An Garda Síochána.

Counsel submits that s. 23 (1) provides that where a defendant has refused or failed to comply with the garda's requirement to provide two breath specimens it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, [namely, the refusal or failure to provide two specimens of his breath] he complied with or offered but was not called upon to comply with a requirement under s. 13 in relation to the taking of a specimen of blood for the provision of a specimen of urine. Where the defendant has failed or refused to provide the breath specimens he has no defence unless he can show that he complied with a requirement for the taking of a specimen of blood or the provision of a specimen of urine or, if he was not so required, he offered to do so.

Counsel provides by example the situation of an asthmatic and submits that it is not a defence for an asthmatic to satisfy the court that there was a special and substantial reason for his refusal or failure to provide the breath specimens when required unless he can also satisfy the court that as soon as practical after his refusal or failure he complied with a requirement in respect of blood or urine or offered to do so but was not called upon to so comply.

Counsel submits two possible interpretations for s. 23 (1) namely:

1. That where a person fails or refuses to provide two breath specimens when required by a member of An Garda Síochána, he should then be required by a member of An Garda Síochána to permit the taking of a blood sample or to provide a urine sample at his option, or

2. When a person fails or refuses to provide two breath specimens when required by a member of An Garda Síochána and the garda is under no obligation to require blood or urine and does not make such a requirement the person must of his own initiative offer to do so or he shall have no defence to a prosecution for failing to provide the breath specimens.

Counsel submits that if interpretation 1 is correct then the garda ought to have made a requirement of the accused to permit the taking of a blood specimen or at his option to provide urine when the accused has failed or refused to provide two breath specimens.

Counsel submits that if interpretation 2 is correct, then in order to give procedural and substantive fairness to the operation of the section it would have to be indicated to the arrested person in some way that a good and substantial reason for refusing or failing to give two breath specimens would not be a defence to a prosecution for failing or refusing to do so, unless he was prepared to permit the taking of a blood sample or at his option to provide a urine sample.

Conclusions

Section 13 of the Act of 1994 provides, inter alia, as follows:

"(1) Where a person is arrested under section 49 (8) or 50 (10) of the Principal Act or section 12 (3), or where a person is arrested under section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following—

( a ) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

( b ) require the person either—

(i) to permit a designated doctor to take from the person a specimen of his blood, or

(ii) at the option of the person, to provide for the designated doctor a specimen of his urine,

and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related.

(2) Subject to section 23, a person who refuses or fails to comply forthwith with a requirement under subsection (1)(a) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.

(3) Subject to section 23, a person who, following a requirement under subsection (1) (b)—

( a ) refuses or fails to comply with the requirement, or

( b ) refuses or fails to comply with a requirement of a designated doctor in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both."

Section 23 of the Act of 1994 provides as follows:

"(1) In a prosecution of a person for an offence under section 13 for refusing or failing to comply with a requirement to provide 2 specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.

(2) In a prosecution of a person for an offence under section 13, 14 or 15 for refusing or failing to comply with a requirement to permit a designated doctor to take a specimen of blood or for refusing or failing to comply with a requirement of a designated doctor in relation to the taking of a specimen of blood, it shall be a defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.

(3) Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under Section 49 or 50 of the Principal Act that the defendant refused or failed to comply with a requirement to provide 2 specimens of his breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his blood or to comply with a requirement of a designated doctor in relation to the taking of a specimen of blood, as the case may be."

I am satisfied that each of these sections must be read together. While the words "requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine" appear, the requirement "in relation to the taking" (words emphasised) appearing here and in s. 13 pertain to the requirements of a doctor under s. 13 (3) (b) of the Act of 1994. Accordingly, I am satisfied that the defence provided for in s. 23 of the Act of 1994 is one essentially arising in relation to such compliance.

I am also satisfied that the words "and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine" appearing in s. 23 (1) arise where the member concerned has opted under s. 13 (1) (b) to "require the person either—

(i) to permit a designated doctor to take from the person a specimen of his blood, or (ii) at the option of the person, to provide for the designated doctor a specimen of his urine" and not otherwise.

Accordingly, I am satisfied that in considering whether an accused has a defence as provided for in s. 23 of the Act of 1994, it will be necessary for a judge to establish in the first instance whether the accused has satisfied the court that there was a special and substantial reason for his refusal or failure to comply with a requirement to provide 2 specimens of his breath.

It is clear from the wording of ss. 13 (2) and (3) that the defences arising under s. 23 may arise either in the case of a failure or refusal to comply with a requirement either under subs. (1) (a) or (1) (b). It is clear, however, from the provisions of s. 23 (1) that it is not in itself sufficient to show that there was a special and substantial reason for his refusal or failure to comply with a requirement to provide 2 specimens of his breath as the subsection imports a fresh requirement following the conjunctive 'and' to the effect "that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine."

There remains the question whether there is an obligation on the member of the Garda Síochána concerned to inform the arrested person that a special and substantial reason for such refusal or failure will not of itself afford a defence to a prosecution for refusing or failing to provide such breath specimens, in light of the further provisions of s.23 (1) of the Act of 1994. I am not satisfied that there is any such requirement as the requirement to date has been for a member of An Garda Síochána to advise someone that failure to comply with the requirement under subsections (1) (a) or (1) (b) may constitute an offence punishable at law. I do not consider that there is any obligation on the member concerned to advise an arrested person as to what defence or defences may be open to the arrested person in the event of a subsequent prosecution. I am not satisfied that any requirement of constitutional fairness imposes any such obligation as contended for by counsel on behalf of the accused in this case.

In light of these conclusions I am satisfied that I must answer the first question in the negative and in the circumstances the second question does not arise for determination.