Supreme Court dismisses appeal where prosecution failed to prove lawful detention before breath specimen requirement.

[2003] IESC 11

THE SUPREME COURT

252/02

CASE STATED PURSUANT TO THE PROVISIONS OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and

MICHAEL FINN

Defendant/Appellant

JUDGMENT of Mr. Justice Hardiman delivered the 19th day of February, 2003.

1. This is a case stated by His Honour Judge Bryan McMahon of the Circuit Court. It appears that in the above entitled criminal

prosecution it was established that the defendant had been arrested pursuant to Section 49(8) of the Road Traffic Acts 1961-1994.

This occurred at 11.25pm on the 9th June, 2000. The defendant was then conveyed to Dunlaoghaire Garda Station, arriving at

11.40pm. The member in charge at the Station recorded the accused’s arrival there and other details. At 11.44pm a Garda Darren

Coogan introduced himself to the accused and brought him to an interview room. There he simply remained with the accused until

12.04am on the 10th June. In evidence, Garda Coogan stated that during the twenty minute period just mentioned he ensured that

the accused took nothing orally. At 12.04am on the 10th June he explained to him the procedure in relation to the taking of a breath

specimen. At 12.07am he made a statutory requirement, pursuant to Section 13(1)(a) of the Road Traffic Act, 1994, that the

defendant provide two specimens of his breath. He pointed out the implications of a failure to comply with the requirement or of

refusal to comply with it. In cross-examination he agreed that the defendant was detained for a period of time, described as “over

twenty minutes or so” before any step was taken towards obtaining a breath sample or making a requirement that such be provided.

He was asked in cross-examination to justify the detention of the defendant subsequent to his arrival in the Garda Station and prior

to being required to produce a breath specimen. In answer, he pointed to the fact that the accused had been arrested under Section

49(8) of the Road Traffic Acts, 1961- 1994 as the necessary justification. He was then asked to point to any particular statutory

provision, regulation or statutory instrument which justified the period of detention between 11.44pm and 12.04am during which no

step was taken towards making the statutory requirement. In reply he stated that “guidelines” given to An Garda Síochána indicated

that a garda in such circumstances should observe an arrested person for a period of twenty minutes prior to taking a sample or

requiring that a sample be given.

2. The defendant, Garda Coogan said, refused to comply with his direction to give a breath specimen. This occurred at 12.08am.

3. The learned Circuit Court Judge found as follows:-

“At the time of the accused’s arrival at the Garda Station on the night in question he was not called upon to provide a

breath sample. Instead, 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. Apart from the desire to carry out this period of observation over the

accused, the Gardaí were not prevented by any particular circumstances from making a requirement of the accused

pursuant to Section 13(1)(a) of the Road Traffic Act, 1994 that he provide a specimen of his breath. The Gardaí did not

make the Section 13(1)(a) requirement until some twenty-seven minutes following the arrival of the accused at the

Station”.

4. Based on the above finding the learned Circuit Court Judge then formulated the following two questions for the opinion of the

Supreme Court:-

“(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?

5. Although this case seemed to be regarded by both sides as being in the nature of a test case, intended to yield an answer of

general application, it seems to me to turn very much on its own facts. The defendant was an arrested person. In the ordinary course

of events the sole purpose of arrest is to bring the person arrested before a court or Peace Commissioner: see Dunne v. Clinton

[1930] IR 366. However, certain statutes permit other steps to be taken in relation to an arrested person. Relevant here is Section 13

of the Road Traffic Act, 1994 which, in so far as relevant, provides that once a person has been arrested under Section 49(8) and is

at a Garda Station, a member of the Garda Síochána may:-

“Require the person to provide, by exhaling into an 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”.

6. In the present case it appears that this was done after a period of more than twenty minutes during which, on the evidence, there

was no interaction at all between the defendant and the Guard. They simply sat in a room with the Guard observing the defendant

though without telling him why he was doing so. At the end of this period the Guard demanded the specimen.

7. Where a person is arrested in the ordinary way, as Hanna J. said in Dunne v. Clinton:-

“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 a felony, it is the duty of the police officer arresting him to take him with

reasonable expedition before a Peace Commissioner. He can be retained in custody only during such a time as is

reasonable for that purpose. Any question of the time necessary to investigate the offence, or to obtain evidence upon

which to found a charge, is quite irrelevant. It is for the Peace Commissioner and not the guard to determine whether the

suspected person is to remain in custody or to be released on bail”.

8. In that case, the submission of the authorities that a member of the Garda Síochána could detain a person for a reasonable time

during which he might make enquiries was rejected. Hanna J. stated:-

“It was further contended on the part of the defendant that, as a police officer, he was entitled to detain the plaintiffs’

for a reasonable time during which he might have the opportunity of making enquiries, and investigating their connection

with the crime, and that such detention did not amount to arrest or imprisonment and was lawful”.

9. This contention was stoutly rejected by the Court in passages that have been quoted with approval throughout the seventy-three

years since its delivery.

10. As already noted, the provisions of Section 13 of the 1994 Act is by way of exception to the general rule about the treatment of

an arrested person. This Act and its predecessors have given rise to a great deal of litigation, as have other statutes permitting an

arrested person to be detained for some purpose without being brought before a court, such as the Offences against the State Act,

1939. In all these cases it has been held that provisions permitting detention must be strictly construed. For example, in DPP v.

McGarrigle (Supreme Court, unreported, 22nd June, 1977) it was held that compliance with the Statute must be strictly proved and

that all its requirements must be affirmatively proved to have been complied with and this must “not be left to be inferred”.

11. If a person arrested in the ordinary way must be brought before a Court or Peace Commissioner as soon as reasonably possible, it

seems to me to follow that a person arrested in circumstances which permit some other procedure to be activated in respect of him is

entitled to have this procedure initiated as soon as reasonably possible. This conclusion is supported by the fact that the Criminal

Justice Act 1984 (Treatment of Persons in Custody) Regulation 1987 require that a person in custody be dealt with without

“unnecessary delay”. Alternatively, if there is statutory authority for it, he may be detained or otherwise constrained for a period

permitted by statute.

12. It is of some interest to note that the 1994 Act, in other provisions, lays down particular time limits during which a person’s liberty

may be restricted. Section 12 of the Act provides that where a member of the Garda Síochána forms the opinion that a person in

charge of a car has consumed intoxicating liquor, but does not have with him an apparatus for indicating the presence of alcohol in

the breath, he may require the person “to remain at that place in his presence or in the presence of another member of the Garda

Síochána until such an apparatus becomes available to him (but he shall not require him so to remain for more than one hour).”

Similarly Section 16 of the Act permits the member in charge at a Garda Station to which a person arrested under certain Sections

has been brought, if he is of the opinion that the person is under the influence of drink to such an extent to be a threat to his own

safety or that of others, to detain him in custody “for such period (not exceeding six hours from the time of his arrest as the member

considers necessary”.

13. The prosecutor, in his submissions in the present case said that “Since the power of arrest could have been invoked at any time

within three hours of the time of driving, the accused cannot complain that, as a consequence of an arrest made at 11.25pm he was

required to provide a sample of his breath at 12.07am on the following day at any time up until circa c. 2.20am he was liable to be

arrested under Section 49(8) at any stage thereafter a requirement could lawfully have been made of him under Section 13(1)(a),

although for the offence to be proved the sample must be taken within three hours of driving”.

14. This submission seems to me to rest on a misconstruction of Section 49 of the Road Traffic Act. Section 49 in its present form is

inserted by Section 10 of the 1994 Act. It creates, at subsection (2) a prohibition against driving or attempting to drive a

mechanically propelled vehicle in a public place “while there is present in his body a quantity of alcohol such that, within three hours

of so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of eighty milligrams of alcohol

per one hundred millilitres of blood”. In other words, the excess alcohol offence is committed if the concentration of alcohol in the

blood or urine exceeds the permitted limit at any time within three hours of driving. This, however, is not to say that the power of

arrest conferred by subsection (8) is confined to a three hour period after the defendant has been driving. This power of arrest exists

not merely in respect of excess alcohol charges but also in respect of the original offence of driving while incapable of having proper

control of a vehicle (Section 49(1) ). It is certainly not the law that no prosecution may be initiated unless an arrest takes place

within three hours. The effect of that would be to confer an immunity on anyone who could escape arrest for three hours after

driving.

15. It thus appears to me that the prosecutor’s submission is based, oddly, on an overly restrictive view of the powers of a member

of the Garda Síochána. He says, in effect, that the defendant could have been arrested at any time within three hours of driving and

therefore cannot complain in a case like this where he was arrested immediately after driving and the whole procedure was complete

within an hour or so of his driving. But the case does not turn on the period within which the defendant could have been arrested: it

turns on what is required to be done after his arrest, whenever that has occurred.

16. I have no difficulty with the proposition that where the authorities are entitled to perform a particular procedure on arrest, they

are entitled to a reasonable period of time in which to do it. For example, if a decision is made to procure the attendance of a doctor

for the purpose of requiring the arrested person to provide him with a specimen of blood or urine, a reasonable period for the

attendance of the doctor is required. But, at least upon the reasonableness of the length of time actually involved being challenged,

it will in my view be necessary to demonstrate that the actual period of time was no more than was reasonable. The onus of proof on

this point is and must be on the prosecution since the reasons why a particular length of time was required will normally be within its

exclusive knowledge. For that purpose evidence about the distance the doctor had to travel, any other commitments he had at the

time and cognate matters might be called so as to render a period of time which seemed excessive reasonable.

17. The difficulty in this case is that the Guard’s direct evidence gave no reason whatever for the interval during which nothing at all

occurred. On being specifically challenged the Guard simply referred to a garda guideline. This was not itself produced. Even if it had

been, in the absence of any specific statutory provision or presumption or authoritative decision it would require to be demonstrated

that the need to wait for twenty minutes or any other period of time was objectively reasonable.

18. This is not a case of delay simpliciter. It is a case in which a Guard having custody of the applicant deliberately decided to wait

for a particular fixed period before making the statutory requirement which was the purpose of the detention. He did this, he said, on

the basis of “guidelines” given to An Garda Síochána.

19. The question in this case is whether that is a sufficient justification of the time which elapsed without any step being taken other

than observation. This case, accordingly, does not raise such questions as whether every interval elapsing before some statutory

purpose of detention is achieved requires positive justification, or whether some intervals are so short as not to call for positive

justification even when challenged. I would reserve my position on that issue until it arises in an individual case.

20. It is clear from the evidence of the Guard as set out in the case stated that he himself made no decision simply to sit in a room

with the applicant, doing or saying nothing, for twenty minutes. He did this because he had been told or advised to do so in

“guidelines”. Whether these are internal Garda guidelines or guidelines for the manufacturers of the breathalysing device or guidelines

from some medical or scientific adviser or from the DPP, does not appear. It is, however, clear that they are not contained in any

statute or statutory instrument or regulation on the treatment of persons in custody.

21. There was, accordingly, insufficient evidence in this case to permit the learned Circuit Judge to draw a conclusion as to whether

the twenty minute interval specifically fixed by some unknown authority was or was not reasonably necessary to the achievement of

the statutory purpose mentioned in S.13 (1)(a) of the Road Traffic Act 1994.

22. This conclusion does not mean that in another case where the same offence is alleged, there might not be sufficient evidence on

this point. It is impossible to speculate as to what this might be, because we have no information at all as to the actual purpose of

the delay. But the fact that the evidence was insufficient in this case by means excludes the possibility of there being sufficient

evidence tendered by the prosecution in another case under the same Section. This decision is on the facts of the present case.

23. I am therefore far from holding that, in another case, there might not be evidence which would clearly demonstrate the

reasonableness of a twenty minute interval between arrival at the Garda Station and the administration of the test. One might

speculate that the garda guidelines which apparently require this period of delay are based on some form of instruction from, or

consultation with, the makers of the device into which the breath specimen is provided. But there was no evidence of any such thing

in the present case, and still less was there any evidence as to why, precisely, the interval was required, from a scientific point of

view. In the context of a statute which authorises the deprivation of the suspect’s liberty, and the compulsory provision of evidence

by him, it is not possible to presume that the delay was occasioned by some lawful and reasonable cause. A person arrested for a

particular purpose is entitled to have that purpose accomplished as soon as reasonably possible, and then to have his liberty restored.

In the words of Finlay C.J. in McGarrigle’s case “Such a basic requirement in a serious matter must, it seems to me, be affirmatively

proved and not left to be inferred”.

24. In the absence of such proof it seems to me that it has not been established that the defendant’s detention at the time the

requirement was in fact made was lawful. I would therefore answer the first question in the negative. It follows that the second

question must be answered “Yes”. Lawful custody is a prerequisite of a lawful requirement to provide a specimen and the onus of

proof that the custody is lawful rests on the prosecution.

25. This case arose at an early stage of the operation of the evidential breath specimen procedure. It may be that, before long, the

operation of that procedure will be fully expounded and judicially considered so as to allow trial courts, in an appropriate case, to take

judicial notice of certain incidents of the procedure. This was not a factor in the present case.