Supreme Court quashes conviction where 20-minute pre-test detention lacked evidence of necessity for reliable breath samples.

THE SUPREME COURT

Record No. 252/02

Murray, J.

McGuinness, J.

Hardiman, J.

Geoghegan J.

Fennelly, J.

Between

DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

MICHAEL FINN

Defendant/Appellant

Judgment of Murray, J. delivered on the 19th day of February, 2003.

This is a case stated by His Honour Judge Brian McMahon of the Circuit Court, Dublin, pursuant to the provisions S.16 of the Courts of

Justice Act 1947. The learned Circuit Court Judge poses two questions of law, which I recite below, and which arise in the following

circumstances as set out in the case stated.

The Defendant was arrested at 11.25pm on the 9th June, 2000 pursuant to section 49 (8) of the Road Traffic Acts 1961 to 1994.

This permits a member of the Garda Síochána to arrest without warrant a person who in the member’s opinion is committing or has

committed an offence under that section, which concerns offences of driving or attempting to drive a mechanically propelled vehicle

under the influence of alcohol. Where a person is arrested under that section, section 13(1)(a) provides that a member of the Garda

Síochána may, at a garda station, inter alia, require the person concerned to provide, by exhaling into the apparatus for determining

the concentration of alcohol in the breath, two specimens of his breath, and may indicate the manner in which he is to comply with

the requirement.

After his arrest, the Defendant was conveyed to Dun Laoghaire garda station where he arrived at 11.40pm. The member in charge

recorded his arrival and other relevant details, gave him a notice of his rights and explained them to him. The Defendant was then

brought to an interview room by Garda Darren Coogan at 11.44pm. He remained with him in the interview room for a period of twenty

minutes and Garda Coogan’s evidence was that during the twenty minute period he kept him under observation. It would appear from

the garda’s evidence as recorded in the case stated, that during this period he verified that the Defendant consumed nothing orally.

He observed the Defendant until 12.04am and at 12.07am he made a requirement of the Defendant pursuant to Section 13(1)(a) of

the 1994 Act that he provide two specimens of his breath. At 12.08am, the Defendant, according to Garda Coogan, refused to comply

with his direction to give a breath specimen. The Defendant was charged with an offence arising from that refusal.

According to the case stated by the learned Circuit Court Judge some twenty seven minutes elapsed between the arrival of the

Defendant in the garda station and the making of the requirement of him pursuant to Section 13(1)(a) and twenty minutes of this was

concerned with the Defendant waiting in the interview room while he was under the observation of Garda Coogan.

It appears from paragraph 4 of the case stated that Garda Coogan stated that the reason for the period of observation was that

guidelines given to An Garda Síochána indicated that an arrested person should be observed for a period of twenty minutes prior to

requiring a sample of breath to be given and this was done in order to ensure that the Accused did not consume any food.

I understand by this that the Garda Síochána verified that no food had been taken since on the case stated nothing intrusive

happened and all that essentially occurred was passive observation by a garda member.

Questions and arguments of the parties:

In these circumstances the learned Circuit Court Judge posed two questions in the following terms:

(i) In the circumstances before me, where the evidence given was that the gardaí waited some twenty seven minutes (twenty

minutes being the minimum period of observation stipulated by the Garda Síochána guidelines) following the arrival of the

Accused at the garda station before any requirement was made pursuant to Section 13(1)(a) of the Road Traffic Act 1994 and

that nothing prevented the gardaí from making the requirement at the time of the Accused’s arrival at the station, was the

Accused in lawful detention at the time the requirement was made at 12.07am?

(ii) If the answer to the above question is “No” does that render inadmissible the evidence subsequently obtained?

It is not in dispute that when the Defendant arrived in the garda station his detention there was lawful for the purpose of enabling a

member of the Garda Síochána to require of him to provide either specimens of his breath or alternatively other specimens to a

designated doctor as required by the member pursuant to Section 13(1).

The question is whether what occurred in the garda station infringed the defendant’s legal or constitutional rights so as to render that

detention at some point unlawful.

In the course of his submissions, Counsel for the Defendant relied on the decision of Hanna, J. in Dunne –v- Clinton [1930] I.R. 85

concerning the duties of the Garda Síochána concerning the exercise of their powers of arrest generally on a criminal charge and

which has been described on many occasions by this court as a definitive statement of law in this area, although allowance has to be

made for legislative changes since that decision which permit the arrest and detention of persons for purposes other than being

brought before a court such as questioning in certain circumstances or, as in this case, in order to obtain a specimen of the person’s

breath.

These legislative changes do not alter the essential principles decided in the Dunne case in situations where there are no express time

limits or time frames (such as ‘immediately’) provided for by statute. Where a statute expressly lays down time limits concerning the

detention of a person in custody they must, of course, be strictly complied with.

Counsel for the D.P.P. submitted, inter alia, that the period of time involved was such that the requirement was made of the Accused

within a reasonable time. In some cases a considerably greater period of time might have to elapse before a requirement could be

made, depending on the circumstances. Such a time should not invalidate the lawfulness of the persons detention. So far as the

submission of the D.P.P. founded on the power of the gardaí to arrest a suspected person within three hours after driving or

attempting to drive is concerned, I agree with Hardiman, J. that this argument is wholly unfounded.

Delay

The decision in Dunne –v- Clinton concerns, inter alia, the duty of arresting gardaí towards a person whom they have arrested on

suspicion of a felony. As regards the duty of the arresting gardaí Hanna J had this to say:-

“It is, in my opinion, clearly the law that, once a person is detained by the guards or, in other words, in custody of the guards, on

suspicion of having committed the felony, it is the duty of the police officer arresting him to take him with reasonable expedition

before a Peace Commissioner. He can be detained in custody only during such time as is reasonable for that purpose.”

Later Hanna, J. went on to say “Now, what is a reasonable time after arrest? No hard and fast rule can be laid down to cover every

case. It must depend on many circumstances, such as the time and place of the arrest, the number of the Accused, whether a

Peace Commissioner is easily available, and such other matters as may be relevant.”… “The Plaintiff in this case could have been

brought before a Peace Commissioner at any time on Tuesday or Wednesday. Having regard to the law it was unreasonable delay,

and therefore unlawful detention, to wait until Wednesday night.”

These principles were applied by this court in The People –v- Walsh [1980] I.R. 303 where O’Higgins C.J. stated: -

“Reasonable expedition is required but more than this cannot be demanded. Regard must be had to the circumstances and to

the time of the arrest. If a person is arrested late at night, it scarcely seems unreasonable if he is held overnight and charged

before a court the following morning. The important thing is that his detention after arrest must be only for the purpose of

bringing him before a District Justice or a Peace Commissioner with reasonable expedition so that a Court can decide whether

he is to remain in custody or to be released on bail. In this case the Appellant was arrested at 9.30pm at night on a Thursday.

Courts were sitting normally on the following day.

O’Higgins J. later went on to conclude “…I can see no basis on the evidence and in the circumstances of the arrest for regarding the

overnight detention of the Appellant as being unreasonable.” (P.103). Here O’Higgins, C.J. was referring to the period from the arrest

of the person concerned at 9.30pm and when he could have been brought before the District Court on the following morning. He held

that the further detention of the arrested person beyond that period was unlawful on the grounds of unreasonable delay.

In Dunne –v- Clinton the delay was the best part of two days during which the Dunne brothers were held in a garda station without

being brought before a Peace Commissioner or a court. In The People –v- Walsh the Appellant in that case was arrested at 9.30pm on

Thursday 23rd January, 1975 and not brought before the District Court until Saturday 25th January. As can be seen neither of them

involved a delay as short as twenty minutes.

Although the Defendant in the present proceedings was not arrested on a criminal charge for the purposes of being brought before a

court he was arrested and deprived of his liberty for a purpose authorised by statute namely the taking of specimens of his breath for

analysis in connection with a possible offence of driving a vehicle while he had an excessive amount of alcohol in his blood. In my view

the principles set out in Dunne –v- Clinton and applied in The People –v- Walsh govern the duty of the arresting gardaí in this case

who were under duty to take appropriate steps to make the statutory requirement of the Defendant to provide specimens of his

breath “with reasonable expedition”, within a “reasonable” time or without “unreasonable delay”, adopting the language used by

Hanna, J. in Dunne –v- Clinton. Whether there was unreasonable delay would fall to be considered having regard to all the

circumstances of the case. Central to this must be the actual duration of the delay.

In criminal proceedings the onus is on the prosecution to establish beyond reasonable doubt that a Defendant, while held in custody,

has at all times been so held in accordance with law. Not every delay is unreasonable and if it is not unreasonable it does not require

to be objectively justified. Once it has been established by the prosecution that a Defendant has been lawfully arrested and detained

the question as to whether that lawful detention has been rendered unlawful by unreasonable delay in dealing with the Defendant is in

the first instance a matter for the trial Judge to determine having regard to the circumstances of the case. Generally speaking I would

be very much disinclined to consider that a delay of twenty minutes simpliciter in dealing with an arrested person is the kind of delay

which could be treated as rendering an otherwise lawful custody, unlawful, at least in the absence of some other special

circumstances.

However, for the reasons which I set-out hereunder I have come to the view that what was involved here was something which goes

beyond delay as such in dealing with the Defendant after he was brought to the garda station and the issue goes beyond simply

whether any delay was reasonable or unreasonable.

The twenty minute detention period or ‘delay’ in this case

The learned Circuit Court judge found that on arrival at the Garda Station, and before any steps were taken to actually take a breath

sample, the accused was detained for a period of time amounting to twenty minutes.

One finds in paragraph 4(iv) and question (i) of the Case Stated that two reasons were given as an explanation for the detention

period. These were:-

(a) “…the accused was put into a waiting room for the purpose of being observed by Garda Coogan to ensure that the

accused did not consume any food.” 4(iv).

(b) “…The evidence given was that the gardai waited some twenty seven minutes (twenty minutes being the minimum period

of observation stipulated by the Garda Síochána Guidelines) following the arrival of the accused …” (Q.(i)).

It follows from the foregoing facts that there are Garda Síochána Guidelines which stipulate that persons arrested pursuant to section

13(1)(a) of the Road Traffic Act, 1994 must as a matter of practice be kept in detention for a minimum period of twenty minutes for

the purpose of ensuring that no food is consumed by him or her. (At one point in the Case Stated there is a reference to the purpose

of the detention to ensure that nothing was taken orally, but nothing turns on this).

There was no finding of the learned Circuit Court judge that this period of observation was extraneous to the purposes for which the

person had been arrested, namely, the taking of appropriate breath specimens pursuant to the section. In any event it seems to me

the inescapable conclusion on the facts before us is that the stipulated minimum period of detention and observation was associated

with the purpose of the arrest and the intention of the garda to require the accused to provide specimens of his breath.

In my view, the facts found by the learned Circuit Court judge demonstrate that what is involved here is the introduction of a

discrete and defined minimum period of detention, for a forensic purpose, to be observed as a matter of practice in every case in

which a person is arrested under section 13(1)(a) of the 1994 Act with a view to requiring him or her to provide specimens of breath.

This was not so much delay as the observance of a pre-established practice according to which there is inserted a discrete period of

detention between the arrival of the arrested person at the garda station and the taking of the samples. It is a prescribed and

conscious prolongation of an arrested persons period of detention in all such cases. In my view these factors which I have mentioned

differentiate this case clearly from cases in which for one reason or another an issue arises as to whether there has been

unreasonable delay in dealing with an arrested person.

In my view the onus is on the prosecution to justify in law recourse to a procedure involving such a prescribed minimum period of

detention and observation for a forensic purpose. It must, in my view, be justified by objective reasons.

If it had been objectively established, to the satisfaction of the learned Circuit Court judge, that, for example, the procedure of

observation for a stipulated period was reasonably necessary for the purpose of taking proper or reliable samples of breath (the

purpose of the detention) then in my view that procedure would not have rendered the accused’s detention unlawful. The onus on

the prosecution is, of course, to establish lawful detention beyond reasonable doubt.

However, that was not the case. All that was established before the learned Circuit Court judge was that Garda Síochána guidelines

which apply to a person arrested in the circumstances of the accused required his observation for the purposes and period outlined

above. There was no evidence before the Circuit Court which would permit the Circuit Court judge to conclude that the procedure

involved was reasonably necessary for the purpose of achieving the objective of the arrest namely the taking of samples of breath.

In my view, if the procedure according to which an arrested person must be observed for twenty minutes is capable of being justified

it must be justified by a competent witness who can give appropriate evidence. I do not wish to speculate unduly as to what that

evidence might or might not be in this case but it may involve establishing that, for example such a procedure is necessary in order to

comply with manufacturers’ instructions concerning the use of an apparatus or accords with a generally recognised and established

practice. If I can take another example entirely, if a testing apparatus is stored in a fridge and requires to be brought back to room

temperature before use I do not think it is necessary to go into the scientific effects of temperature on the apparatus but it would be

sufficient to establish that a standard and generally recognised practice, or manufacturers’ instructions, require the apparatus to be

used at room temperature in order to be effective. Indeed the need to follow procedural steps in such a process may as a result of a

series of cases, become so notorious as to become the subject of judicial knowledge.

Neither do I think that such procedural steps if thus objectively justified require to be authorised by statute or statutory regulations

in order to be lawful provided they are shown on the evidence to be reasonably necessary in order to give effect to the purpose for

which the arrest was authorised by law in the first place. Of course it is also a procedure which could be given specific authorisation

by statute or statutory regulation.

This case falls to be decided on its own particular facts. There being no evidence before the learned Circuit Court judge as to why

observance of the guidelines in question were reasonably necessary for achieving the purpose for which the accused had been

arrested, the discrete and prescribed period of detention in question has not been justified in law and I would answer the first

question posed by him in the negative.

The obligation on the defendant to submit to the test in question was imposed by statute even though it may inculpate him in the

commission of an offence. Given that the specified period of detention leading up to the taking of that test was not, on the facts,

justified in law, I am of the view that the second question should be answered in the affirmative.