THE SUPREME COURT

O’FLAHERTY J
BARRINGTON J
KEANE J
MURPHY J
BARRON J

257/98

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1957 AND IN THE MATTER OF SECTION 51 OF THE COURTS (SUPPLEMENTAL) ACT, 1961

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT

AND

JENNY LENNON
RESPONDENT

[JUDGMENTS BY MURPHY J., BARRON J. AND O’FLAHERTY J.; BARRINGTON J. AND KEANE J. AGREED WITH MURPHY J.]

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 9TH DAY OF MARCH 1999

This case concerns the adequacy of facilities provided at Ashbourne Garda Station in relation to the provision of blood or urine samples for the purposes of the Road Traffic Act 1994 section 13.

The particular question the subject matter of these proceedings arose in this way. On Sunday 15th December 1996 Garda K Traynor stopped a motor car then driven by the above named

Respondent, Jenny Lennon. The Garda detected the smell of intoxicating liquor from the Respondent. He formed the opinion that she had consumed intoxicating liquor. The Respondent admitted that she had taken some drink. The Garda required her to undergo a breath test in accordance with section 12 of the 1994 Act. The test proved positive. The Garda formed the opinion that the Respondent was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of alcohol and so informed the Respondent. The Respondent was arrested, brought to the Ashbourne Garda Station at about 1.25 am. A doctor - Doctor Gujral - was called and arrived at the garda station at 1.30. Garda Traynor introduced the Respondent to Dr Gujral and informed the Respondent that he was requiring her to provide the Doctor with a specimen of blood or, if she so wished, a sample of her urine. The Respondent opted for the urine test but when she was informed by Garda Traynor that she would have to furnish the urine specimen while in a cubicle which was itself in the room where Garda Traynor and Dr Gujral intended to remain she declined to provide the urine sample as she had intended and instead agreed and felt compelled to provide a blood specimen. Ultimately the result showed that she had 122mg of alcohol per 100ml of blood.

Subsequently the Respondent was prosecuted by the Director of Public Prosecutions, at the suit of Garda K Traynor, for driving a mechanically propelled vehicle while there was present in her body a quantity of alcohol in excess of the permitted limits contrary to sections 49 and 6 of the Road Traffic Act 1961 as inserted by section 10 of the Road Traffic Act 1994 as further amended by the Road Traffic (Amendment) Act 1995. The summons was heard by District Judge John P Brophy at Dunshaughlin District Court on the 15th April 1997. At the close of the prosecution case in which the facts above recited were established Counsel on behalf of the Respondent submitted that the toilet facilities afforded no privacy to a woman

2

wishing to provide a urine specimen. Counsel submitted that the Defendant was entitled to a choice as to whether to furnish a blood or urine specimen and that the choice must be a real and effective choice. Having regard to the nature of the facilities available for providing a urine specimen he submitted that the Respondent had been deprived of her choice and that the requirements of the legislation had not been met.

The location of the toilet facilities and the circumstances in which the urine sample might be provided were described by Garda Traynor. He stated that the toilet was in a cubicle in the left rear portion of the room. He said that there was a door on the front of the cubicle with a division on the bottom and also on the top of the door. There was also a division between the top of the cubicle and the ceiling. He outlined the layout of the room, stating that there was sink, table, chair and desk in it. Garda Traynor was asked whether he could see the Respondent’s feet and stated that he supposed he could if he got down on his hands and knees and looked under the door. Garda Traynor confirmed that he and Dr Gujral remained in the room. Garda Traynor stated that no pressure was exerted on the Respondent to provide a urine sample. Garda Traynor said that there were female gardai attached to the Ashbourne Station, but none was present at the time when the Respondent was there.

As the prosecuting superintendent submitted that the facilities were adequate and further the Respondent had not requested more privacy, the learned Judge of the District Court himself viewed the toilet during the luncheon break and reached the conclusion following:-

“That the privacy of a female, who opted to give a urine specimen, would not be respected if she had to furnish a sample in the cubicle while a male garda and doctor remained in the room.

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Accordingly, he concluded that the Respondent had been unlawfully deprived of the choice to which she was entitled under section 13 of the 1994 Act.

In the circumstances the Appellant sought the case which the learned Judge stated for the opinion of the High Court on the 16th December 1997. The question posed in that case was expressed in the following terms:-

“The opinion of the High Court is sought as to whether I was correct in law in so dismissing the charge.”

By his judgment given on the 26th June 1998 Mr Justice Morris (as he then was) answered the question in the affirmative and the Director of Public Prosecution now appeals that decision to this Court.

Where a person is - as the Respondent was - arrested under section 49 of the Road Traffic Act 1961 and a member of the Garda Siochana was of opinion that the person consumed an intoxicant - as was the case here - a member of the Garda Siochana is entitled by virtue of section 13 of the Road Traffic Act 1994 to:-

“Require the person:-

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(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 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.”

There are a series of preconditions to be complied with before the Gardai can demand specimens pursuant to section 13 aforesaid. The driving of the person concerned must be such as to excite the suspicion of the Gardai. Preliminary investigation must then confirm this suspicion. If then the person is arrested the 1994 legislation provides that a scientific and quantitative test should be substituted for the debatable and controversial opinions as to intoxication which had long bedevilled this important area of law enforcement. Whilst the specimens required under section 13 and the tests to be applied thereto can achieve a degree of scientific accuracy which is highly desirable, there is no doubt that the requirement to provide either specimen is a very serious intrusion on the constitutional rights of the citizen. The extraction of a specimen of blood involves a clear breach of the citizens right to bodily integrity and the provision of a urine sample must involve some intrusion on the right to privacy. The Oireachtas was careful to ensure that neither specimen could be required unless the statutory conditions precedent had been met and the alternative procedures clearly were intended to go some way to meet the differing concerns of persons to whom section 13 might

5

apply. Obviously there are many people who would recoil from the prospect of undergoing the medical procedure involved in extracting a blood sample. Others would be appalled at what they would see as being the indignity of providing a urine sample. The availability of alternative tests may solve delicate problems for some but not all. Some people may find either choice abhorrent. For them perhaps the only solution may be the ideal of not driving after drinking or drinking before driving.

I have no doubt that the learned Judge of the District Court was correct in concluding that the person from whom a specimen is demanded in accordance with section 13 of the 1994 Act is entitled to choose as between two options. If one option is not available at all - if, for example, no equipment was available to enable a blood sample to be taken, insistence on a urine sample would not meet the requirements of the section. Similarly if the circumstances in which one or other option was available were so unsatisfactory as to make it unacceptable by reasonable standards, for example, if the medical equipment available to take a blood sample was in an unhygienic condition, the availability of that option would be illusory and the person concerned would not have been offered his or her statutory entitlement.

Again. I would have no difficulty in accepting that if the circumstances in which a urine sample was to be provided involved an excessive or unnecessary intrusion on the dignity of the person concerned by reasonable standards of modesty that the authorities would not have fulfilled their obligation to offer that statutory option.

We do not have measurements of the room in which the Garda and the Doctor were to remain or the toilet cubicle in which the Respondent was to provide the urine sample. Persons required to give a urine sample must be provided with an appropriate receptacle and even if they then withdraw to a secluded toilet in a different area they must return with the sample.

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Most people would regard this as rather embarrassing and some intensely so. It seems to me that this basic problem is inescapable. The issue is whether the layout of the toilet area and the adjoining room and the other circumstances was such as to render the circumstances unacceptable. The fact that the partition walls of the cubicle did not reach fully down to the floor or up to the ceiling so as to exclude the possibility of a determined observer seeing the Respondent’s feet is hardly decisive. I would have thought there was adequate visual privacy. Nor does the absence of a female garda - or her presence if she had been present -significantly alter the situation. Whether male or female the function of the garda concerned was to witness the handing over of the urine sample to the doctor. The learned Judge of the District Court concluded, following his inspection, that the facilities at the garda station were so inadequate as to deprive the Respondent of her right of privacy but he did not suggest in the Case Stated that what he observed differed in any way from the specific findings he made by reference to the evidence given by Garda Traynor. Nor does the learned Judge give any indication as to which factor or factors in particular concerned him. Was it the possibility that the Respondent might be observed while providing the sample? Was it the absence of a female garda or was it, as was suggested in argument, that the intrusion on Ms Lennon’s privacy would be auditory rather than visual? It was not identified by the Respondent as a particular matter of concern to her nor was the general nature of the problem explored in the cross-examination of the Garda witness.

On the basis of the specific findings made by the learned District Court Judge and even considering those matters in the light of the very significant fact that the Respondent herself having opted to provide a urine sample changed her mind and agreed to provide a blood sample when she had been advised of the arrangements under which the urine sample was to be provided, I cannot accept that the circumstances under which the urine sample was to be

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provided were so deficient and represented such an excessive and unwarranted intrusion on the right of privacy of the Respondent that the learned Judge would have been justified as a matter of law in treating it as not being an option at all for the purposes of section 13 of the 1994 Act.. Whilst I would like to think that the authorities would ensure that the arrangements available for the provision of samples under the 1994 Act respect as fully as circumstances can permit the constitutional rights of citizens it must be recognised that the provision of such samples will necessarily involve some element of discomfort or embarrassment which will vary with the physical and psychological make up of the person concerned but cannot be wholly eliminated. In my view the circumstances in which the Respondent was required to give a urine sample were far from ideal but not so deficient as to amount to no choice at all.

In the circumstances I would allow the appeal and answer the question posed by the learned Judge of the District Court in the negative.

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O’Flaherty J.
Barrington J.
Keane J.
Murphy J.
Barron J.
257/98
THE SUPREME COURT

IN THE MATTER OF SECTION 2 OF 
THE SUMMARY JURISDICTION ACT, 1957

AND IN THE MATTER OF SECTION 51 OF THE
COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
and

JENNY LENNON
Respondent

JUDGMENT delivered on the 9th day of March 1999 by BARRON J.

A basic issue in this case is governed by the judgment of Murphy J.in D.P.P. v. O’Connor just delivered. The defendant exercised her option to provide a sample of urine. As she did not do so, that case has decided that it is immaterial whether she could do so or not. Her obligation to provide a sample of blood revived, and this she did. What is material is whether she had a real option to provide a sample of urine or whether the circumstances in which she was required to provide such sample deprived her of that option.

Whether the option is regarded as a right or a privilege, there must be a corresponding obligation to ensure that the person arrested has a real choice whether or not to exercise that option. What is in issue here is whether or not there was such a real choice.

In the instant case the defendant says that a woman should not be asked to provide a sample of urine in the circumstances prevailing on the

(3)

night in question. The Director of Public Prosecutions said that the facilities offered were not unreasonable.

In the course of argument it was submitted that with deprivation of liberty an arrested person must also accept other restrictions on their constitutional rights. This is not the case to give a definitive answer to this question. Essentially, a person’s rights remain subject to such statutory restrictions as may follow loss of liberty. Unfortunately, for the person arrested, once their liberty is lost they are no longer in control of their own circumstances.

The defendant found herself in an unhappy position. She had just been arrested. When she goes to provide a sample of urine she reacts to the manner in which it is supposed to be done. It is in her eyes a further indignity.

(4)

I accept that in the ordinary course of events the defendant would not go to a like lavatory under the observation of two men as she went in and came out where they could hear what occurred while she was in the lavatory. But that is a subjective reaction. What the Court has to consider is the objective circumstances. An arrested person cannot expect the same conditions as in their own homes. Not only are institutions generally more basic, but in an arrest situation there is also an obligation upon the arresting authority to ensure compliance with the purpose of the arrest.

In D.P.P. v. Swan, Blayney J. suggested that a male person might be required to provide his sample of urine in the presence of the doctor. It appeared in argument that this is usual. In my view a female person should have no complaint about being asked to provide a sample in a cubicle where she cannot be seen.

(5)

As Murphy J. has said the circumstances are embarrassing in any event. Such embarrassment cannot be avoided. It is not significantly aggravated by the instant circumstances. It has been suggested that the presence of a female guard might have made a difference. While I readily accept that it might make a difference in individual cases and perhaps also in the instant case, I would not accept it as a legal proposition.

Where should the dividing line be drawn between what is unreasonable and what is not. In my view it would be unreasonable to require the sample to be provided in circumstances which breach the rights of the person arrested over and above such restriction as is predicated by the arrest and its surrounding circumstances in a word it must not be degrading. That is not the position here.

In the circumstances, I would allow the appeal.