High Court allows prosecution where blood specimen form omissions do not render evidence inadmissible under Road Traffic Act 2010.

[2018] IEHC 529

THE HIGH COURT

2017 No. 1164 SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 (AS AMENDED)

DIRECTOR OF PUBLIC PROSECUTIONS

(at the suit of GARDA MAIRÉAD HEHIR)

Prosecutor

– AND –

MARTINA O’CONNELL

Accused

JUDGMENT of Mr Justice Max Barrett delivered on 1st October, 2018.

I

Consultative Case Stated

1. This is a consultative case stated by a judge of the District Court. The case raises an issue in the context where (i) a blood

specimen is taken from a person later prosecuted for drunk driving, and (ii) there are omissions in the form completed by a doctor in

relation to the specimen. In a nutshell, the District Judge raises a number of questions as to whether such omissions are fatal to the

drunk driving prosecution. Rather than summarise the case stated, the main substance of same is quoted hereafter:

“2. At a sitting of Nenagh District Court on the 3rd day of March 2017, Ms Martina O’Connell (hereinafter referred to as

‘the accused’) appeared before me for trial on foot of summons case number 2016/19224…alleging that on the 5th

November 2015 at Belleen Upper Nenagh the accused did drive a mechanically propelled vehicle…while there was present

in her body a quantity of alcohol such that within 3 hours after so driving the concentration of alcohol in her blood did

exceed a concentration of 50 milligrams of alcohol per 100 millilitres of blood to wit 220 milligrams of alcohol per 100

millilitres of blood contrary to section 4(2)(a) & (5) of the Road Traffic Act 2010.

3. The case for the Prosecution was presented by Inspector Seamus Maher. Mr Dully, counsel instructed by Mr John

Spencer, Solicitor, appeared for the accused.

4. On behalf of the Prosecution, Garda Mairead Hehir, a member of An Garda Síochána stationed in Nenagh, County

Tipperary, gave the following evidence:

She stated that on the 5th November, 2015 at 00:48 she was on mobile patrol duty when she observed a vehicle

travelling at speed on St Conlon’s Road, Nenagh. Garda Hehir turned the patrol car and followed the vehicle. She

observed the vehicle travel towards the Portroe roundabout where it nearly collided with the traffic island before

entering the roundabout. Garda Hehir activated the siren and lights to indicate to the vehicle to stop. The vehicle pulled

in at Belleen Upper, Nenagh. Garda Hehir approached the vehicle and requested the driver to produce her driving licence.

The driver started laughing and Garda Hehir then requested her name which she gave as Martina O’Connell. While

speaking to the accused, Garda Hehir noticed a strong smell of alcohol from her breath. The Garda cautioned the

accused and made a requirement under Section 9 of the Road Traffic Act 2010 to provide a specimen of her breath. The

accused complied with this requirement and the breath sample registered a fail. Garda Hehir formed the appropriate

opinion and arrested the accused under Section 4(8) of the Road Traffic Act 2010 and conveyed her to Nenagh Garda

Station where she was introduced to the member in charge, Garda Michelle Casey. Garda Hehir gave evidence to the

effect that Garda Casey complied with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána

Stations) Regulations 1987 and 2006.

At 1.27am, Dr Dubre, a designated doctor under the Road Traffic Acts, arrived at the Garda Station. Garda Hehir

introduced the accused to Doctor Dubre and proceeded to the doctor’s room, where Garda Hehir made the statutory

requirement under Section 12 of the Road Traffic Act 2010 requiring the accused to permit the designated doctor to

take from her a specimen of blood or at her option a specimen of urine. The accused opted to provide a blood

specimen.

Garda Hehir gave evidence that the doctor took a specimen of blood from the accused. The doctor then separated the

blood into two glass bottles, placed stickers with the accused’s name and date of birth on the bottles and sealed the

bottles with a white tape, placed the bottles into the white containers and placed a red seal on each container.

The accused opted to retain one of the samples. The doctor then placed the remaining container in the specimen kit

box, along with the doctor’s form. The accused was subsequently released from custody.

Garda Hehir forwarded the sample to the Medical Bureau of Road Safety and subsequently received the certificate of

analysis from the Bureau with a reading of 220 milligrams of alcohol per 100 millilitres of blood.

The Doctor’s form issued pursuant to Section 15(1) of the Road Traffic Act 2010 and the Medical Bureau certificate

issued pursuant to Section 17(3) of the Road Traffic Act 2010 was produced to the Court by Garda Hehir….

On cross examination by Mr Dully BL, Garda Hehir confirmed that Doctor Dubre was not being called to give evidence as

she was now in South Africa.

Garda Hehir agreed with Mr Dully that the Medical Bureau certificate states ‘no name on container Martina O’Connell’ on

specimen bottle’.

Garda Hehir further accepted that paragraph no.2 of the doctor’s form under Section 15, which requires the nature of

the specimen (either blood or urine) to be completed, had been left blank and that further Doctor Dubre had failed to

delete either paragraph (a) or paragraph (b) at a later point in the certificate indicating whether the specimen taken

was blood or urine.

Mr Dully also directed Garda Hehir to the portion of the form confirming that the doctor had labelled each container with

the name of the person and date and the Garda agreed, as already outlined in her evidence in chief, that the doctor had

labelled the specimen bottles but had not labelled the containers.

Garda Hehir further agreed that the specimen bottles were taped with the white tape and placed in the containers and

the said outer containers were then sealed with the tamper proof red seal.

No further evidence was called by the Prosecution.

5. At the conclusion of the Prosecution case, Mr Dully confirmed that no issues arose on the prosecution case except the

following and applied for a direction to dismiss the summons against the accused on two grounds:

(a) Due to the failure by the doctor to complete para. no.2 specifying blood and the failure to delete either paragraph

(a) or paragraph (b) later in the form, and further the fact that the doctor stated in the form that she labelled the

container with the name and date of the accused when the evidence was that she labelled the bottle, the form cannot

be held to be duly completed. Therefore the form has lost its evidentiary presumption and thereby cannot be admitted

in evidence as proof of the facts stated therein. The decision of Ms Justice O’Malley in DPP v. Mullins was relied upon in

support of the application to dismiss on this ground.

(b) The fact that the evidence of Garda Hehir had established that the labels were placed on the bottles and not on the

containers. The decision of DPP v. Tate Croom-Carroll was relied upon in support of the application to dismiss on this

ground.

6. In response, Inspector Maher on behalf of the Prosecution posited that there was no prejudice to the accused and

that on the evidence as adduced I was not bound to dismiss the prosecution. The decision of DPP v. Somers was relied

upon in support of this submission.

7. I adjourned the case to Nenagh District Court on the 21st April 2017 to give due consideration to the said legal

submissions. Consideration has been given by me to, inter alia, the following Superior Court decisions: [various decisions

identified]….Consideration has also been given by me to the specific provisions of section 15 and section 20 of the Road

Traffic Act 2010 and to the Road Traffic Act 2010 (Sections 15 and 17) (Prescribed Forms) Regulations 2011….

Under section 15(1) where the doctor has taken a specimen of blood from the person he/she must divide the specimen

into 2 parts, place each part in a container which he/she must immediately seal and complete the form prescribed

under the above-mentioned regulations.

Under section 20 a duly completed form under section 15 shall, until the contrary is shown, be sufficient evidence of the

facts stated therein and shall, until the contrary is shown, be sufficient evidence of compliance by the doctor concerned

with the requirements imposed on him/her under Section 15.

Under the above-mentioned regulations, the form prescribed for the purposes of section 15 is set out in schedule 1

thereof.

I have noted that the statement by the doctor that he/she labelled each container with the name of the person and

date is introduced in this form, this not being a specified requirement under section 15.

I have noted that the doctor is statutorily obliged under section 15 to complete the form.

I have noted that the doctor’s form must be duly completed to benefit from the evidentiary presumption under section

20. 8. On the adjourned date, I advised the parties that having given consideration to the legal submissions that I have

decided to refer questions of law to the High Court pursuant to section 52 of the Courts (Supplemental Provisions) Act

1961.

9. The opinion of the High Court is sought on the following questions of law:-

(a) Am I correct in being of the opinion that due to the omissions and error in the doctor’s form that it cannot be

deemed to be duly completed and thereby has lost its evidentiary presumption under section 20 and cannot be admitted

in evidence as proof of the facts stated therein?

(b) If the answer to (a) is yes, can the Court look outside the form for evidence that the doctor has complied with the

statutory requirements?

(c) If the answer to (b) is yes, does the Court have judicial discretion to rely on the evidence of Garda Hehir that the

statutory procedures under Section 15 have been complied with by the doctor?

(d) Has the Court judicial discretion to deem that the statutory requirement under section 15 to complete the form by

the doctor has been satisfied despite the omissions and error in the form as adduced in evidence and if there is such

judicial discretion is it exercisable only where no prejudice is caused to the accused by such omissions or errors?

(e) The requirement to label the containers is not a specific statutory requirement under section 15 but is introduced in

a form prescribed for the purposes of section 15 contained in a schedule to S.I. No 540 of 2011. [1] What is the legal

consequence of the evidence adduced that the doctor labelled in the specimen bottles but failed to label the containers?

[2] Is the defence correct in its submission that due to this error of the doctor that the Court must dismiss the

prosecution?” [Emphasis added].

2. The difficulties with the doctor’s form have been comprehensively outlined in the above-quoted extract from the case stated.

However, it is easier to understand the difficulties when one sees the form. For convenience, the detail of the form is replicated in the

Appendix hereto.

II

Some Applicable Legislation

3. Sections 15 (“Procedure regarding taking of specimens of blood and provisions of specimens of urine”), 17 (“Procedure at Bureau

regarding specimens”) and 20 (“Provisions regarding certain evidence in proceedings under Part 2 [“Intoxicated Driving Offences”] of

the Road Traffic Act 2010 provide as follows:

“15(1) Where under this Chapter a designated doctor or designated nurse has taken a specimen of blood from a person

or has been provided by the person with a specimen of his or her urine, the doctor or nurse, as the case may be, shall

divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the

form prescribed for the purposes of this section.

[The requisite form is prescribed by the Road Traffic Act 2010 (Sections 15 and 17) (Prescribed Forms) Regulations 2011

(S.I. No. 540 of 2011)].

(2) Where a specimen of blood (other than a specimen taken under section 14(3A)) or urine of a person has been divided

into 2 parts under subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed

containers and inform the person that he or she may retain either of the containers.

(3) As soon as practicable after—

(a) in the case of a specimen of blood taken under section 14(3A), subsection (1) has been complied with, or

(b) in the case of any other specimen, subsection (2) has been complied with,

a member of the Garda Síochána shall cause to be forwarded to the Bureau—

(i) the completed form referred to in subsection (1),

(ii) where the specimen of blood was taken from the person concerned under section 14(3A), a label,

notice or statement in writing to that effect,

(iii) where the person chooses to retain one of the sealed containers offered under subsection (2), the

other sealed container, and

(iv) where the person declines to retain, or in the case of a specimen of blood taken under section

14(3A) has not been offered, one of the sealed containers, both sealed containers.

(4) In a prosecution for an offence under this Chapter or under section 4 or 5, it shall be presumed until the contrary is

shown that subsections (1) to (3) have been complied with.

…

17(1) As soon as practicable after it has received a specimen forwarded to it under section 15, the Bureau shall analyse

the specimen and may determine, as appropriate, all or any of the following:

(a) the concentration of alcohol in the specimen;

(b) the presence of a drug or drugs in the specimen;

(c) the concentration of a drug or drugs in the specimen.

(2) Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same person or 2

specimens of urine so forwarded together in relation to the same person, it shall be sufficient compliance with

subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or

(as may be appropriate) one of the 2 specimens of urine.

(3) As soon as practicable after compliance with subsection (1), the Bureau shall, subject to section 17A(3), forward to

the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the form

prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person who is

named on the relevant form under section 15 as the person from whom the specimen was taken or who provided it.

(4) In a prosecution for an offence under this Chapter or under section 4 or 5, it shall be presumed until the contrary is

shown that subsections (1) to (3) have been complied with.

…

20(1) A duly completed statement purporting to have been supplied under section 13 shall, until the contrary is shown,

be sufficient evidence in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without

proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown,

be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on

him or her by or under Chapter 4 prior to and in connection with the supply by him or her under section 13 of such

statement.

(2) A duly completed form under section 15 shall, until the contrary is shown, be sufficient evidence in any proceedings

under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on it or that the

signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by

the designated doctor or designated nurse concerned with the requirements imposed on him or her by or under Chapter

4.

(3) A certificate expressed to have been issued under section 17 shall, until the contrary is shown, be sufficient evidence

in any proceedings under the Road Traffic Acts 1961 to 2010 of the facts stated in it, without proof of any signature on

it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of

compliance by the Bureau with the requirements imposed on it by or under Chapter 4.

(4) In a prosecution for an offence under section 4, 5, 12, 13B or 14 it shall be presumed until the contrary is shown

that each of the following persons is a designated doctor or designated nurse:

(a) a person who by virtue of powers conferred on him or her by Chapter 4 took from another person a specimen

of that other person's blood or was provided by another person with a specimen of that other person's urine;

(b) a person for whom, following a requirement under section 12(1), 13B(1) or 14(1) to permit the taking by him

or her of a specimen of blood, there was a refusal or failure to give such permission or to comply with a

requirement of his or hers in relation to the taking of such a specimen;

(c) a person for whom, following a requirement under section 12(1) or 14(1) to provide for him or her a specimen

of urine, there was a refusal or failure to provide such a specimen or to comply with a requirement of his or hers

in relation to the provision of such a specimen.

(5) Where, under section 12, 13B or 14, a designated doctor or designated nurse states in writing that he or she is

unwilling, on medical grounds, to take from a person a specimen of his or her blood or be provided by him or her with a

specimen of his or her urine, the statement signed by the doctor shall, in any proceedings under the Road Traffic Acts

1961 to 2016, be sufficient evidence, until the contrary is shown, of the facts stated in it, without proof of any signature

on it or that the signatory was the proper person to sign it.”

III

Individual Questions Raised in Case Stated

4. Question (a) reads as follows: “Am I correct in being of the opinion that due to the omissions and error in the doctor’s form that

it cannot be deemed to be duly completed and thereby has lost its evidentiary presumption under section 20 and cannot be

admitted in evidence as proof of the facts stated therein?”

5. In DPP v Mullins [2015] IEHC 695, O’Malley J. indicates (see under the heading “Discussion and conclusions” at paras. 29-32) that a

failure to specify whether blood or urine was taken renders the prescribed form other than duly completed. (This is different from the

conclusion reached by the Supreme Court in DPP v. Somers [1999] 1 IR 115. However, Somers was a case where the error was

assuaged by the introduction of suitable information later in the form. Here (as in Mullins) there has been a complete failure to specify

and so Mullins is the applicable authority). It follows from the foregoing that ‘yes’, the form loses its evidential presumption – though

only, it seems to the court, in respect of the taking of blood and labelling.

6. Question (b) reads as follows: “If the answer to (a) is yes, can the Court look outside the form for evidence that the doctor has

complied with the statutory requirements?”

7. It is important to remember that the provisions of the Road Traffic Act 2010 under consideration are intended to facilitate road

traffic prosecutions, not impede them. The possibility that the prosecution could rely on alternative evidence to prove its case is

expressly contemplated by O’Malley J. in her judgment in Mullins, para.33. That is an approach which chimes with the decision of the

Supreme Court in Somers and it accords with the ruling of the Supreme Court in Treacy v. Young (Unreported, Supreme Court, 13th

July, 1983), given that in that last case, unlike here, it does not appear that there was separate evidence of compliance. Here –

consistent with the observation of Barrington J. in DPP v. Tate Croom-Carroll [1999] 4 IR 126, 135, that where circumstances are

such that the statutory presumption is displaced that will “call for an explanation from the prosecution” – there is the requisite

explanation in the form of the evidence given by the prosecuting garda that Dr Dubre took a specimen of blood from the accused (and

this comes coupled with the evidence from the Medical Bureau that what was received was a specimen of blood). The court does not

accept the contention that the Garda is not competent to give evidence that Dr Dubre took a specimen of blood from the accused.

To the extent that reliance is sought to be placed by the accused on DPP v. Egan [2010] IEHC 233, the court respectfully considers

that decision to have been overtaken by the more recent decision of the Supreme Court in Avedenei (considered later below) and the

focus therein on prejudice as a key issue for consideration. It follows from the foregoing that the answer to Question (b) is ‘yes’.

(This is particularly so if there has been no prejudice to the accused; the court expresses no view as to whether any prejudice

presents).

8. Question (c) reads as follows: “If the answer to (b) is yes, does the Court have judicial discretion to rely on the evidence of Garda

Hehir that the statutory procedures under Section 15 have been complied with by the doctor?”

9. For the reasons identified in the context of Question (b), it seems to the court that the answer to Question (c) is ‘yes’. (This is

particularly so if there has been no prejudice to the accused; the court expresses no view as to whether any prejudice presents).

10. Question (d) reads as follows: “Has the Court judicial discretion to deem that the statutory requirement under section 15 to

complete the form by the doctor has been satisfied despite the omissions and error in the form as adduced in evidence and if there

is such judicial discretion is it exercisable only where no prejudice is caused to the accused by such omissions or errors?”

11. For the reasons identified in the context of Question (b), it seems to the court that the answer to Question (d) is ‘yes’. It is clear

from the decision of the Supreme Court in DPP (McMahon) v Avedenei (Unreported, Supreme Court, 20th December, 2017) (see esp.

paras. 87-90 of the judgment of O’Malley J.) – a decision which post-dates the making of the within consultative case stated – that,

per O’Malley J., at para. 90, “there should…be an analysis in each case as to the actual effect of the procedural error, or flaw in a

documentary proof, on the fair trial rights of a defendant. If a breach of the statutory procedure is established, but it has had no

consequences in that no unfairness, prejudice or detriment can be pointed to, then the normal standards applicable to criminal trials

would indicate that the evidence is admissible”.

12. Question (e) reads as follows: “The requirement to label the containers is not a specific statutory requirement under section 15

but is introduced in a form prescribed for the purposes of section 15 contained in a schedule to S.I. No 540 of 2011. [1]What is the

legal consequence of the evidence adduced that the doctor labelled in the specimen bottles but failed to label the containers? [2] Is

the defence correct in its submission that due to this error of the doctor that the Court must dismiss the prosecution?”

13. As to Question (e)[1], it seems to the court that one is again in Tate Croom-Carroll territory with an explanation required of (and,

as it happens, provided by) the prosecution, viz. the garda evidence that the specimen bottle/container was labelled/was not labelled

by Dr Dubre (which evidence comes coupled with the Medical Bureau certificate which states “no name on container/Martina

O’Connell on specimen bottle”). Moreover, nothing in the foregoing takes from the scientific analysis undertaken by the Medical

Bureau. It follows from the foregoing that, as to Question (e)[2], ‘no’ the defence is not correct in its submission that due to this

error of the doctor the District Court must dismiss the prosecution.

IV

Summary of Answers Given

14. As indicated above, the court’s answers to the questions raised are as follows:

Question (a): ‘Yes’, the form loses its evidential presumption – though only, it seems to the court, in respect of the taking

of blood and labelling.

Question (b): ‘Yes’.

Question (c): ‘Yes’.

Question (d): ‘Yes’.

Question (e): As to Question (e)[1], it seems to the court that one is again in Tate Croom-Carroll territory with an

explanation required of (and, as it happens, provided by) the prosecution, viz. the garda evidence that the specimen

bottle/container was labelled/was not labelled by Dr Dubre (which evidence comes coupled with the Medical Bureau

certificate which states “no name on container/Martina O’Connell on specimen bottle”). Moreover, nothing in the

foregoing takes from the scientific analysis undertaken by the Medical Bureau.

As to Question (e)[2], ‘no’.

APPENDIX

Replication of Detail in the Doctor’s Form

Form to be completed by a designated doctor or designated nurse under section 15 of the Road Traffic Act 2010.

Foirm le comhlánú ag dochtúir nó d’altra ainmnithe faoi alt 15 den Acht um Thrácht ar hóithre, 2010.

1. Name, address, date of birth and gender of the person from whom the specimen to which this form relates was taken, or who

provided the specimen.

Ainm, seoladh, data breithe agus inscne an duine ar tógadh an sampla lena mbaineann an fhoirm seo uaidh nó uaithi, nó a

chuir an sampla ar fail.

Name/Ainm: Martina O’Carroll

Address/Seoladh: [Court Note: Stated in form]

Date of Birth/

Dáta breithe: [Court Note: Stated in form]

Gender/Inscne an duine: Female

2. Nature of specimen (insert ‘blood’ or ‘urine’ as appropriate)

An cineál sampla (cuir isteach ‘fuil’ nó ‘fual’ de réir mar is cuí)

[Court Note: No detail inserted by Dr Dubre at this point.]

3. Place at which specimen was taken or provided (delete whichever is not appropriate)

An áit inar tógadh nó inar soláthraíodh an sampla (scios cibé ceann nach bhfuil cuí)

(a) Nenagh Garda Station

Garda Síochána Station/An Stáisiún Garda Síochána

(b) ……………………………………

Hospital/Ospidéal

4. Date on which specimen was taken or provided.

An data ar ar tógadh nó a soláthraíodh an sampla.

5.11.2015

5. Time at which specimen was taken or provided.

An t-am a tógadh nó a soláthraíodh an sampla,

01h38 on 5.11.2015

6. Garda Síochána station from which the specimen will be forwarded to the Bureau (to be completed in the case of a specimen taken

or provided in a hospital).

Stáisiún Garda Síochána óna gcuirfear an sampla ar aghaidh chuig an mBiúró (le comhlánú sa chás gur tógadh sampla nó gur cuireadh

sampla ar tail in ospidéal)

Nenagh

[Court Note: It is not clear why section 6 was completed by Dr Dubre as the specimen was provided at Nenagh Garda

station, not in a hospital].

I, the undersigned designated doctor or designated nurse

Thóg mise, an dochtúir ainmnithe nó d’altra ainmnithe a bhfuil mo shíniú leis seo thíos

(a) took from the person named at 1 above the specimen of blood or (delete whichever is not appropriate)

ón duine ainmnithe ag 1 thuas an sampla fola nó (scrios amach cibé ceann nach bhfuil cuí)

(b) obtained from the person named at 1 above the specimen of urine

ón duine ainmnithe ag 1 thuas an sampla fuail

to which this form relates.

lena mbaineann an fhoirm seo.

[Court Note: Dr Dubre should, on the facts of this case, have deleted (b) above. In fact, Dr Dubre made no insertion or deletion at

this point of the form.]

I divided the specimen into two parts. I placed each part in a container, which I forthwith sealed.

Rinne mé dhá chuid den sample. Chuir mé gach cuid ar leith I gcoimeádán agus shéalaigh mé láithreach é.

I labelled each container with the name of the person and date. I gave both containers to a member of the Garda Síochána.

Chuir mé lipéad ar gach coimeadán ar leith le hainm an duine agus an data. Thug me an dá choimeadán do comhalta de chuid an

Gharda Síochána.

Signature of designated doctor or designated nurse

Siniú an dochtúra ainmnithe nó d’altra ainmnithe:

Dr Dubre