Court dismisses careless driving charge due to duress and intoxication causing serious injuries to passengers.

AN CHÚIRT DÚICHE THE DISTRICT COURT District Court Area of Tullamore District No. 15

Neutral Citation: [2023] IEDC 2 Record No: 2022/217807;

2023/414581 1-3. BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BRENDAN J. MULVEY)

PROSECUTOR

AND

SHANE FINNERTY ACCUSED

Judgment delivered by Judge Andrew Cody at Tullamore District Court on September 18, 2023. BACKGROUND AND SUMMARY.

1. The accused, Shane Finnerty, was charged with intoxicated driving, driving without insurance, failing to produce insurance and careless diving arising out of an incident on the 27th of November 2022 at Birr, Co Offaly. On the night in question two of Mr. Finnerty’s friends were assaulted by two men and he and his friends were sitting in a car waiting to be collected when the two assailants returned and Mr. Finnerty drove erratically while uninsured and intoxicated to get away from the assailants before being stopped by Gardaí a short distance away.

CHARGES.

2. The accused, Shane Finnerty, is charged with the following four offences.

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1. On the 27th of November 2022 at Tullamore Road, Birr Offaly a public place in the said District Court Area of Tullamore did drive a mechanically propelled vehicle registration 09CN6272 while there was present in your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 22 micrograms of alcohol per 100 milliliters of breath, to wit 67 micrograms.

Contrary to Section 4(4)(a) & (5) of the Road Traffic Act 2010.

2. On the 27th day of November 2020 at Tullamore Road, Birr Offaly, a public place in said District Court Area of Tullamore, were a user of a mechanically propelled vehicle registered number 09CN6272 such vehicle being one for which neither a vehicle insurer nor an exempted person would be liable for injury caused by the negligent use of said vehicle at that time and for which there was not then in force an approved policy of insurance as required by part VI of the Road Traffic Act 1961 as amended by Part VI of the Road Traffic Act 1968, as amended.

3. On the 27th day of November 2022 at Tullamore Road, Birr Offaly a public place within the District Court Area of Tullamore, being a user of a mechanically propelled vehicle registered number 09CN6272 did fail to produce there and then, on demand, to a member of the Garda Siochana, either a certificate or insurance or a certificate of exemption in respect of your use of that vehicle on that occasion, and did fail within 10 days after the date on which such production was demanded to produce such certificate in person to a member of the Garda Siochana at a Garda Station named by you at the time when such production was so demanded. Contrary to section 69(1) of the Road Traffic Acts, 1961 and Section 102 of the Road Traffic Act 1961 as amended by Section 18 of the Road Traffic Act 2006.

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4. On the 27th day of November 2022 at Tullamore Road, Birr Offaly a public place in said District Court Area of Tullamore did drive a vehicle registered number 09 CN6272 without due care and attention. Contrary to section 52(1) of the Road Traffic act 1961 (as substituted by section 4 of the Road Traffic (No. 2) Act 2011)

THE EVIDENCE.

Garda Brendan J Mulvey.

3. Garda Brendan J Mulvey gave evidence that on the 27th day of November 2022 at approximately 2:10 am two males had been badly assaulted and received injuries to their face, and one had a very swollen eye. He said he came on the scene after the initial assault and the two gentlemen were friends of Mr. Finnerty, named Justin Cowen and Morgan Smith.

4. He said that at the scene of the assault Mr. Cowen and Mr. Smith were offered an ambulance but that they both refused point blank. These two gentlemen gave descriptions of their assailants, and the Gardaí then went looking for these assailants, for somewhere in the region of 15 to 20 minutes.

5. It was put to Garda Mulvey that Mr. Finnerty would say that the people involved in the original assault came back again and attacked or threatened to attack all three of them for a second time. Garda Mulvey replied that there was no call to the Gardaí and the Garda Station was a short distance away.

6. At approximately 2.30 am Garda Mulvey was driving on Oxmanstown Mall, Birr and observed a Skoda car on Townsend St. travelling with no lights on and heading in the direction of Tullamore. He followed this car, and he said it nearly hit the kerb on two occasions and then went out onto the middle of the road. Garda Mulvey activated the blue lights on the patrol car and stopped car registration 09CN6272 adjacent to the service station on the

3|Page Tullamore Road, a public place, some 550m from the junction of Townsend Street with Oxmanstown Mall.

7. The accused got out of the car straight away and said, “it's not my car”.

Garda Mulvey informed him why he was stopping him and after caution Mr.

Finnerty repeated “it's not my car”. Garda Mulvey said Mr. Finnerty was unsteady on his feet and his eyes were bloodshot. There were two passengers in the back of the car, and they were the two gentlemen that had been assaulted earlier.

8. Garda Mulvey administered a roadside breath test using the Drager machine and Mr. Finnerty failed. After this failure Garda Mulvey formed the opinion that Mr. Finnerty had committed an offence and was arrested at 2:42 am pursuant to section 4(8) of the Road Traffic Act 2010.

9. Garda Mulvey said because of the two injured passengers they waited for assistance to arrive before leaving. Once assistance arrived, they then left and arrived at Birr Garda station 2.51 am. 10.The two injured men were subsequently taken to Birr Garda Station by one of his colleagues and in the Garda Station, they initially refused to go in an ambulance but were eventually persuaded to go by ambulance to Tullamore Hospital. 11.At Birr Garda Station Garda O’Dwyer observed the accused for 20 minutes and at 3.25 am the accused was taken to the doctor’s room. At 3:28 am Garda Mulvey said he could hear that Mr Finnerty was angry and shouting and he went to the doctor’s room. Mr. Finnerty subsequently calmed down and provided a breath sample. He failed the test and at 5:05 am Mr. Finnerty was charged and released on his own bail to appear before Tullamore District Court. 12.Garda Mulvey acknowledged that there were phone calls requested by Mr Finnerty to his father, a brother, and a Mr. Mannion.

4|Page Garda Michelle Sweeney

13.Garda Michelle Sweeney gave evidence that she was the member in charge and complied with the Treatment of Persons in Custody Regulations. A request was made by Mr. Finnerty to speak to his family and attempts made to contact them. Mr. Finnerty subsequently spoke to his father, his mother and his brother, but they weren't able to get through to Mr. Mannion. 14.Mr. Finnerty’s father was contacted at 3:53 am and said he would come and collect the accused as he had no other way home. Garda Sweeney acknowledged that Kevin Mannion’s phone was ringing out. She also acknowledged that Mr. Cowen and Mr. Smith were both badly injured. She said that there was a disagreement between the accused and a male Garda in the doctor’s room and that when that Garda stood out Mr. Finnerty calmed down and completed the test.

Garda Aine O’Dwyer

15.Garda Aine O’Dwyer gave evidence that she was on patrol with Garda Mulvey in Birr on the night in question and there was an incident at approximately 2.10 am when two males were assaulted on Townsend Street, and they refused medical attention. They stated that the culprits ran up Oxmanstown Mall. The Gardaí then left the scene to search for the culprits.

Garda O’Dwyer said she was performing this search when they observed a car driving without lights, at approximately 2.30 am traveling out of Birr in the Tullamore direction. It was not travelling at speed. They followed the car out the Tullamore Road where it gained speed and was weaving on the road.

It nearly hit the kerb and then come back out over the white lines. When the driver was stopped, he said “it's not my car”. She observed that the driver was unsteady on his feet and had a smell of intoxicating liquor. He was emotional and upset but was fully cooperative.

5|Page 16.There were two other males in the rear of the car, and she said these were two that they had been speaking to following an earlier assault on Townsend St. They waited for another car to arrive take the other two men to safety or for medical attention. 17.At Birr Garda Station Garda O’Dwyer said she commenced her observation period at 3:05 am and went to the doctor's room at 3.25 am. There was a slight discrepancy as the Section 13 certificate said she commenced the test at 3.24 am. Garda O’Dwyer explained that she was working off the time on her watch during the observation and there must have been a very minor difference. 18.During the taking of the sample Mr. Finnerty became irate and shouted “ it is a * disgrace” as he believed Garda O’Dwyer had done something to stop the second breath sample registering. Garda Tommy Griffin stepped inside and there were words between the Mr. Finnerty and Garda Griffin and some other Gardaí arrived, and Mr. Finnerty then calmed down and completed the test. 19.The result a reading of 67 milligrams of alcohol per hundred milliliters of breath. The two statements are printed out and she signed both and then presented both to Mr. Finnerty for signature and he signed both and she returned one which she gave to Garda Mulvey.

Mr. Shane Finnerty

20.Mr. Finnerty gave evidence that on the evening in question he went out with two friends for a night out in Birr and they went to a pub and subsequently to a nightclub. During the night Mr. Finnerty asked Mr. Cowen to give him his car keys as he said Mr. Cowen had too much to drink. He said Kevin Mannion was going to drive them home, but he didn't answer the phone. 21.They were going towards Mr. Cowen’s car to wait for Kevin Mannion to collect them and he was walking ahead with the other two behind him. He

6|Page said he heard commotion and turned to see Mr. Cowen “on the floor”. By this time, he said he was nearly at the car and by the time he got back the Gardaí were at the scene. He said Mr. Smith’s eye was very swollen, and he was sitting on a kerb. He said that the assailants had fled, they gave a description of the assailants and he said he pointed the direction which they had left and the Gardaí said they would go look for them. 22.They then walked to the car, and he put Mr. Smith in the back and Mr.

Finnerty said he sat in the front. 23.After the Gardaí had gone, and while they were sitting in the car, the two assailants came back and were taunting them and pulling at the door handles.

He described his two friends in the back seat of the car as being “panned out”. He said the other two said “drive away” and he said he feared for his life. He said he wanted to get out of the area as quick as he could. He said he panicked. 24.He said he was near the service station on the Tullamore Road when he saw the blue lights and pulled in immediately. He said he admitted he was wrong, and it was not his car. He said he was very upset emotionally as he thought it would affect his career as a teacher. 25.At the Garda Station, he said he wanted to make phone calls to his brother initially and didn't want to contact his father but eventually did. He was trying to phone Kevin Mannion, but he didn’t answer. He admitted it was Mr. Cowen’s car and said he had his own car which was fully insured.

Mr. Justin Cowen

26.Justin Cowen gave evidence that he went for a night out in Birr and after they left the nightclub, they were going back to the car waiting for their friend to collect them when he got assaulted, he said he got punched and his other friend got assaulted also. The Gardaí then came.

7|Page 27.He said they got into the car to wait for Kevin Mannion and were there about

5 to 10 minutes when the two assailants came back. He said they were shouting “get out of the * car” and that they didn't feel safe there. 28.Mr. Cowen said they were taken to the Garda Station where an ambulance was called and he was taken to Tullamore Hospital and he felt that he was badly treated at the hospital, like he had done something wrong. He said when he was offered an ambulance initially, he said he wasn't in a state of mind to make such a decision and just picked himself off the ground. He said he didn't press charges as he was trying to forget about it. He said they didn't know who the two assailants were, and he said he didn't want to know either.

Mr. Morgan Smith

29.Mr. Morgan Smith gave evidence to say on the 27th of November 2022 he was the victim of an assault. He was walking down the street ahead of Mr.

Cowen. He heard commotion and saw Mr. Cowen fall to the ground and he went back, and the two assailants came after him and punched him in the face and knocked him to the ground and then ran away. He said the Gardaí came over while they were on the ground and then Mr. Finnerty came back.

He said they got up and went to the car to wait for Kevin Mannion and after

5 or 10 minutes the two assailants came back taunting them. The doors were locked, and he said they told Mr. Finnerty to drive. 30.Mr. Finnerty drove and then the Gardaí pulled them over. 31.Mr. Smith said he was taken by ambulance to Tullamore Hospital from Tullamore Garda Station and kept overnight and the following day he was transferred to Saint James's Hospital where he was an inpatient for a further two nights receiving treatment for his injuries. When asked why he didn't make any complaint he said that he was traumatised enough.

Concluding submissions

8|Page 32.At the conclusion of the case Mr. Staunton BL made a submission that there were grounds to show that the defense of duress of circumstances or necessity applied. He said Mr. Finnerty was subjectively in fear for his safety and in those circumstances, he was entitled to commit the crime that would otherwise have been unlawful. He said the question was “what was going on in the mind of Mr. Finnerty at this time?”. 33.Mr. Staunton outlined that there was no reported Irish case. He relied on the case of Bell and quoted from that 1992 case. He said he was satisfied that the defence of duress had been made out. 34.Sergeant O'Sullivan said that neither of the two injured parties sought medical aid and neither had made a complaint. If such a complaint had been made CCTV could have been obtained and he said in the circumstances, there was no evidence of the need to flee.

DURESS.

35.The Law Reform Commission consultation paper 2006 described duress as :- “Strictly speaking, duress is a species of the larger genus of necessity.

Indeed, it might be said that the two pleas are identical in every respect bar one: in necessity the threat to the defendant comes from natural or circumstantial rather than human sources. Typically, the defendant breaks the law in order to spare himself or another from an impending calamity. For example, he forces his way into private property in order to rescue elderly residents from a blaze.” 36.In the seminal case of AG v. Whelan [1934] I.R. 518: the Court of Criminal Appeal defined duress as “threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The

9|Page application of this general rule must however be subject to certain limitations.

The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification.

…..

Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.” 37.Thus, the general scope of the defence of duress, as outlined in Whelan, is that the will of the accused must have been overborne by the threats, the duress must be operating when the offence is committed and if there is an opportunity for the individual will to reassert itself and it is not taken, a plea of duress will fail. 38.The law on duress was reviewed by Charleton J in the Supreme Court case of DPP v Trevor Gleeson [2016] IECA 332 and provides the following very useful concise summary at paragraph 39, “In essence, duress excuses criminal conduct where unwished for constraint compels an accused of reasonable firmness, of the age, sex and other relevant fixed and permanent characteristics of the accused, into criminal conduct.

That coercion, on a reasonable view, should be so serious as to overcome the resistance of the person seeking to assert the defence.

Duress is a defence but only provided that person genuinely feels under threat of death or serious physical violence from a threat directed against the accused or the accused’s immediate family or someone close to him or her, or someone for whose safety the accused reasonably considers himself or herself responsible.

10 | P a g e The defence of duress only applies where that person has no available resort to any lawful alternative through any reasonable means.

A jury should be reminded that every person is required to obey the law.

If any reasonable opportunity exists for the person who claims to be under duress to take any lawful evasive action, particularly seeking the assistance of law enforcement authorities, it must be taken.

If resort to lawful authority, or to any other lawful means of not committing a crime, is not taken when it is reasonably open to an accused, the defence of duress does not apply.” 39.There are no reported cases in Ireland on the topic of duress and driving. 40.Mr Staunton in his second edition Drunken Driving (Thompson Reuters) at paragraph 2-91) states “It appears that the defence will be available where:

(a) the person acts because he or she knows or believes that it is immediately necessary to avoid death or serious injury to himor herself or another; and

(b) the danger that he or she knows or believes to exist is such that, in all the circumstances (including any of his or her personal characteristics that affect the gravity of the situation), he or she cannot reasonably have been expected to act otherwise.

In assessing the defence, a court is also entitled to take into account the distance the person drove and/or the length of time since the circumstances necessitating the driving arose.

The driving episode must only involve a period of time or distance that was no longer than was necessary in the circumstances.

Therefore, where the person drives for any period beyond the point of immediate fear for his or her life and wellbeing, the defence will not be available.”

11 | P a g e BURDEN OF PROOF 41.The burden of proof in a defence of duress requires the accused to raise sufficient evidence of the elements of duress to allow it to be considered by the Court and once this is achieved the legal burden then falls upon the Prosecution to prove beyond reasonable doubt that the accused was not acting under duress. 42.In DPP v Gleeson Charleton J said that the burden of proof in duress was the same as set out by Walsh J in The People (AG) v Quinn [1965] IR 366:

“When the evidence in a case, whether it be the evidence offered by the prosecution or by the defence, discloses a possible defence of self-defence the onus remains throughout upon the prosecution to establish that the accused is guilty of the offence charged. The onus is never upon the accused to raise a doubt in the minds of the jury. In such case the burden rests on the prosecution to negative the possible defence of self-defence which has arisen and if, having considered the whole of the evidence, the jury is either convinced of the innocence of the prisoner or left in doubt whether or not he was acting in necessary self-defence they must acquit.”

……… Before the possible defence can be left to the jury as an issue there must be some evidence from which the jury would be entitled to find that issue in favour of the appellant. If the evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the defence. In such a case, however, where it falls to the defence to give the necessary evidence it must be made clear to the jury that there is a distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever upon the accused to establish any degree of doubt in their minds

12 | P a g e 43.In The People (DPP) v Kavanagh [18 May 1999] the Court of Criminal Appeal confirmed that, as with other defences, the onus always lies with the prosecution to disprove the defence of duress beyond a reasonable doubt.

The defendant had only to discharge the evidential burden in relation to the defence by placing such evidence before the Court as made the issue fit and proper to be left to the jury. 44.The issue was considered again in The People (DPP) v Dickey the Court of Criminal Appeal [7 March 2003], held that there was a burden of proof on the prosecution to prove that the applicant was not acting under duress, rather than to rebut the defence that he was so acting. 45.In the context of a consideration of the defence of provocation, the Court of Appeal in People (DPP) v Almasi [2018] IECA 372 stated that:

“Nothing, beyond the existence of a threshold level of evidence of reasonably (sic) cogency, i.e., a credible narrative of events suggesting the presence of the various elements of the defence, was required to be "established."” 46.Therefore, the accused must adduce a credible narrative of events of all the elements of the defence of duress. In this regard I view “credible” as having it’s ordinary meaning of being believable.

OBJECTIVE TEST WITH SOME SUBJECTIVITY.

47.In the Australian case of Lawrence [1980] 32 ALR72, Moffat P. stated:“The questions posed are not simply whether the defence of duress is subjective or objective. On any view the defence involved both elements. It would be available only if the mind of the accused is in fact (subjectively) overborne, but that there are some objective developments before the defence is available, is clear.” 48.The subjective test to be answered is did that person genuinely and honestly believes that he/she is under threat of death or serious physical violence from

13 | P a g e a threat directed against the accused or the accused’s immediate family or someone close to him or her, or someone for whose safety the accused reasonably considers himself or herself responsible.

49.In DPP v Gleeson Charleton J notes that “fundamental to any defence is that the accused, in asserting the defence, must be found by the jury to be genuine. This means that the jury must be either convinced of the innocence of the accused or left in doubt as to whether he or she was acting under duress. He or she must actually, in their own mind, be under compulsion. This is a subjective test. 50.The objective test to be answered is only asked if the subjective limb has been cleared, and is would a sober person of reasonable firmness, sharing the characteristics of the age sex and other relevant fixed and permanent characteristics of the accused, have responded in the same way to such threats?

51. Charleton J further notes that.

“There are no relevant authorities which propose that, judged by objective standards, anything less than an ordinary standard of resistance to the threat to the accused can ground the defence of duress.”

In his summary he refers to “an accused of reasonable firmness, of the age, sex and other relevant fixed and permanent characteristics of the accused.” 52.UK Case law has indicated the various characteristics and factors that will be taken into account when the defence of duress is raised. The leading case is R v Bowen [1996] 4 All ER 837 which lists the characteristics that can be taken into account including age, sex, pregnancy, serious physical disability, and a recognised mental illness or psychiatric condition. However, having a

14 | P a g e low IQ, or being abnormally suggestible and vulnerable are not characteristics that can be taken into account. In addition, characteristics that are the result of self-induced abuse, such as alcohol, drugs or glue-sniffing, cannot be considered.

53.In the Northern Ireland case of Chief Inspector v Leckey [2005] NICA 26 The appellant was the driver of a police land rover deployed to control a serious, organised, controlled, prolonged and sustained public disturbance where the police had been subjected to a violent assault, the rioters throwing stones, bricks, fireworks, paint bombs, wood and steel poles and the appellant’s vehicle had been surrounded by rioters and that it had been attacked by an individual attempting to break the windscreen with a steel pole. The appellant’s vehicle mounted the pavement and drove onto waste ground endangering members of the public.

“The judge cited R v Martin in which it was held that, assuming the defence was open to an accused, the defence should be left to the jury with a direction to determine two questions, firstly, whether the accused was, or might have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result, and secondly, if so, whether a sober person of reasonable firmness, sharing the characteristics of the accused, would have responded to that situation by acting as the accused had acted, and to acquit if both questions are answered affirmatively since the defence of necessity will then have been established.

If the first question was answered in the affirmative, the second question is whether another police officer of reasonable firmness, sharing the characteristics of the appellant, would have driven his

15 | P a g e Landrover onto the footpath and onto the waste ground, endangering the lives of those on the footpath and on the waste ground. It would appear likely that his answer would have been in the negative but we cannot be sure as he did not say so.

The defence requires more than an honest belief, it appears. The belief must be reasonable,.

It also requires an objective test which may be slightly more favourable to an accused, as the reasonable man “shares the characteristics of the accused.” 54.A distillation of various authorities in the U.K. has led to the Court of Appeal, in R v Graham, 74 Cr.App.R. 235, posing the following two questions in relation to duress:

“Was the Defendant impelled to act because, as a result of what he reasonably believed the coercer had said or done, he had a good cause to fear death or serious injury?

Have the prosecution proven that a sober person of reasonable firmness, sharing the Defendant’s characteristics, would not have responded in the same way?”

REASONABLENESS AND PROPORTIONALITY

55.In DPP v Gleeson Charleton J said “In every such situation, the issue becomes the human reaction to threat within the context in which the threat is proffered,”

and further stated:

“Duress is only available as a defence to an accused on three conditions which are based on reasonableness. These are that:

He or she reasonably believes that a threat has been made that will be carried out unless an offence is committed; and

16 | P a g e There is no reasonable way that the threat can be rendered ineffective; and The conduct is a reasonable response to the threat.”

56.Lord Hailsham in R v Howe [1987] AC 417 asserted, "I am entitled...to believe that some degree of proportionality between the threat and the offence must, at least to some extent, be a prerequisite of the defence under existing law." 57.In R v Martin [1989] 1 All ER 652 at 653 the UK Court of Appeal confirmed that, the defence of duress "…is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury." 58.There must therefore be a degree of objective proportionality between the threat and the offence as a prerequisite of the defence of duress and the response must be a reasonable one. 59.Proportionality concerns the balancing of the potential harm by the aggressor, threatened or avoided, and the harm potentially inflicted or inflicted by the accused in committing the illegal driving, always seeking to ensure that the harm avoided is greater. This necessarily involves the evaluation by the Judge of the harm threatened or avoided and the illegal driving involved in the response which must be a reasonable and proportionate response to that threat.

THREE CATEGORIES OF DRIVING CASES.

60.It appears to me that the defence of driving under duress is most likely to be raised in three broad categories of cases. In each category the driving which would otherwise involve a conviction for that offence must be balanced against the threat of death or serious injury. In this case the accused is charged with offences under each category.

17 | P a g e 61.Regulatory offences. 62.The first category could be called regulatory offences such as driving without insurance, driving without a driving license or without displaying a road tax disc. These offences in themselves do not involve a threat of death or serious injury. A person may drive for several kilometres without insurance or a license and pose no danger to themselves or the public.

Consequently, the commission of these offences and the distance driven are more likely to be viewed as a reasonable and proportionate responses to the threat of serious injury or death.

63.In the UK case of Eden D.C. v Braid [1999] RTR 329 the defendant a taxi driver was prosecuted for carrying 10 passengers where he was only allowed to carry 6. The evidence established that he went to collect a fare at a horse fair at 11pm and the customer and 9 other people some smelling of alcohol piled into the taxi and when he asked for some to leave some of the passengers became aggressive and fearing for his own safety drove them all to their destinations. He was followed by an enforcement officer who was subjected to confrontational behaviour at the passengers’ destination and the court dismissed the charges based on the defence of duress.

Intoxicated driving 64.The dangers of getting behind the wheel of any vehicle after consuming alcohol or any other intoxicant are well known and accepted. Alcohol and other intoxicants significantly affect judgement, concentration, reaction time, coordination, vision, speed control, information processing, ability to maintain lane position, and appropriate braking. The greater the level of intoxication, the greater the effect and the greater the threat of physical harm and death. The Road Traffic Act 2010 makes it an offence for a specified person, to have a reading of 9 microgrammes of alcohol per 100 millilitres of

18 | P a g e breath. Specified persons include learner drivers and novice drivers and taxi drivers operating in the course of their business. There are four categories starting with 22-35, 36-44, 45-66 and finally 67+ micrograms per 100 millilitres of breath. What will be a reasonable and proportionate response will depend on the level of intoxication and the category of driver involved. 65.There have been a number of UK reported cases involving the defence of duress in an intoxicated driving case.

66.In DPP v Jones [1990] RTR 33 a distance of one and a half to two miles was considered driving too far while intoxicated. The defendant had been subjected to an attack in the car park of a public house. He got into his car which was then hit and kicked. He decided his only means of escape was to drive away. He continued to his home, a distance of one-and-a-half to two miles. The court held that the defence of necessity was available for a part of the journey to his house. But the defence of duress was not available to the defendant because he drove for a longer period than was necessary.

67. In DPP v Bell [1992] Crim. L.R. 176 the defendant had been out drinking with some friends. Some trouble broke out which caused him to run back to his car pursued by others who were less than well disposed towards him.

Fearing serious physical injury, he drove off for some distance in a state of terror. The fact that he drove only for some distance down the road and not all the way home was of significance. The defence of duress applied and had not been disproved by the prosecution.

68. In DPP v Tomkinson [2001] R.T.R. 38 following a New Year’s Eve party, the defendant was violently assaulted by her husband, who also injured himself and then departed in a taxi for hospital having left her without a phone but saying that police were on their way and that she had better leave before he returned home. She left her house to her former home (where her children were) and was stopped by police 3 and a half hours later and when

19 | P a g e breathalysed was found to be over the prescribed limit. Not surprisingly the defence of duress was not available as she was no longer subjected to any effective threat of violence when she left the immediate area of her home and drove 72 miles.

69.In R v Martin, Mr Martin was disqualified from driving and in evidence said that his wife had suicidal tendencies, and on a number of occasions had attempted to take her own life. On the day in question, her son had overslept and would inevitably be late for work, thereby risking his employment. Mrs Martin was distraught and threatened suicide and a doctor’s opinion said that it was likely she would have attempted suicide if her son was not driven to work. It was held by Simon Brown LJ that the defence is available only if, from an objective standpoint, the accused can be said to have acted reasonably and proportionately in order to avoid a threat of death or serious injury. If so, then the jury should be invited to answer two questions:

“was the accused compelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious injury would result, and if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused did?” 70.Therefore, the proportionality of the response of the accused is a perquisite to the other elements and it must be an objective assessment from the standpoint of a sober person of reasonable firmness and not from the standpoint of a person as intoxicated as the accused was at the time of the offence. 71.While there are no reported Irish cases of duress and intoxicated driving, I am aware of two unreported decisions within the last two years which were remarkably similar.

20 | P a g e 72.DPP v Natalie Boland Galway District Court before Judge John Brennan on

18 February 2022. 73.The prosecuting Gardaí gave evidence that she had been on duty on 4 July 2020 when she received a report of a white Audi car driving erratically on the Salthill Promenade. It was 10:25pm. She said that she observed the car driving at speed towards the Salthill Hotel and followed it the 1 km to the Hotel. She said that it didn’t slow down and that it drove very quickly into the underground car park stopping in a no-parking area, facing a wall. 74.Garda Keaveney said that the female driver “was very upset and could only be described as effectively hysterical”. She was crying and when asked for her name she could not speak. She produced her driver’s licence to the Gardaí. She was slurring her speech; her eyes were bloodshot and she could barely speak while crying. The accused told Garda Keaveney that she had a row with her boyfriend in the hotel and had decided to drive home to Dublin.

As she drove down the promenade towards Galway City, she changed her mind and decided to go back to the hotel. 75.She was arrested and analysis showed a reading of 191 mgs of alcohol per

100 mls of urine. This would roughly equate with a reading of 63 micrograms per 100 millilitres of breath. 76.The accused gave evidence and said that her boyfriend physically assaulted her and had pushed her to the ground, and she grabbed her keys and drove her car to the roundabout and decided to come back. When stopped she was just crying and “couldn’t get anything out”. She showed her arms to the Gardaí. The Gardaí had accepted that the accused did show them her arms, but they didn’t see any bruises. The Gardaí did offer to have her boyfriend removed from the hotel if the accused wanted. 77.Judge Brennan said “I’m satisfied that she told the truth. I’m also satisfied that there was an assault. This was a situation where a woman found herself away from her natural environment with someone she didn’t know well.

21 | P a g e However, the doctrine (of duress) has to be circumscribed. If she was halfway up the motorway the defence would not be open to her. “ 78.Judge Brennan accepted that there was corroborative evidence that she had been assaulted and dismissed the charge. 79.DPP v Lucy Maguire Cork Circuit Court 11th of January 2023 before Judge Helen Boyle. 80.The Defendant successfully appealed an intoxicated driving conviction on the basis that she only drove the car on the occasion because she was under duress. She had been convicted of the offence at Cork District Court where she was fined €400 and disqualified from driving for a period of two years. 81.The defendant said that she had been assaulted and was in fear at the time and ran from her room, down a fire escape. Her assailant followed her out to the car park and only drove the car to get away from her assailant. She said she was terrified of her life but realised very soon after getting into the car that she should not have been driving and she decided not to continue and to reversed the car into a parking space. The gardaí observed her driving and was found to be upset and explained that she had an argument with her boyfriend and was prosecuted for intoxicated driving. A sample of urine was analysed, and the test showed a result of 180 mgs of alcohol per 100 ml of urine, which would be the equivalent of 60 micrograms per 100 millilitres of breath. Judge Helen Boyle said in her judgement: “This case is one of drunk driving. She was reversing into a car parking space in the car park of the hotel. The Gardaí spoke to her and formed the opinion she was intoxicated and arrested.” 82.The judge referred to evidence of the assault where Ms Maguire was at one stage grabbed by the throat, and she ran away in fear from the scene of the assault and “All she knew was she needed to be out of there…she grabbed her car keys and ran out the fire escape and got into her car and drove around

22 | P a g e the car park. She realised she had too much to drink, and this (driving) was not a good thing to do.” 83.“I am satisfied on the evidence she was assaulted… She felt there was a threat of physical violence directed against her. She drove the minimum amount before she realised this was not the best course of action.” 84.Judge Boyle was satisfied that the defence of duress was made out and allowed the appeal.

Dangerous and careless driving 85.Dangerous driving contrary to Section 53(1) of the Road Traffic Act, 1961 by definition involves driving in a manner which a prudent person would recognise as involving an unjustifiable risk of harm and is dangerous to the public. While “dangerous to the public” ’ is not defined in statute in People v Quintan (1962) Circuit Court (per Barra O'Briain J.), (1962) I.L.T.S.J. 123,

(1963) I.L.T.S.J. 219 described it as “ driving in a manner which a reasonably prudent man having knowledge of all the circumstances proved in court would clearly recognise as involving unjustifiably definite risk of harm to the public.” Consequently, where a person is charged with and the evidence would support a charge of dangerous driving involving an unjustifiably risk of harm to the public, the accused will have a significant difficulty in meeting the threshold that the driving was a reasonable and proportionate response to the threat of death or serious injury. 86.In this case the accused is charged with a breach of Section 52 of the Road Traffic Act as amended by Section 4 of the Road Traffic Act (No 2) 2011..—

A person shall not drive a vehicle in a public place without due care and attention.

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87. In People (DPP) v O'Dwyer [2005] 3 I.R. 134 the Court of Criminal Appeal referred to the distinction between dangerous and careless driving.

At p.148 Denham J. (as she then was), speaking on behalf of the court, said:

“The concept of careless driving covers a wide spectrum of culpability ranging from the less serious to the more serious. It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver and cases of repeat offending.” 88.In The People (DPP) v. O’Shea [2017] 3 IR 684 O’Malley J in the Supreme Court considered the offence of careless driving in the following terms:- “Careless driving comes below dangerous driving on the continuum. The section makes it an offence to drive “without due care and attention”. That wording in itself makes it impossible to “read in” a necessity to prove intention or recklessness – the core ingredient of the offence is a lack of the care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist. It is probably not desirable to attempt to define the matter further, since everything will depend on the factual circumstances”. 89.Clearly slightly different criteria apply in the case of a charge of careless driving depending on the nature of the driving and all the circumstances 90.In the UK case of DPP v. Harris (Nigel) [1995] 1 Cr.App.R. 170 , McCowen L.J. was:

“inclined to the view that necessity would never be available as a defence to a charge of driving without due care and attention because the court would be entitled to take account of all the circumstances in deciding what was ‘due;’.”

24 | P a g e Circumstances to be considered. 91.There is therefore a requirement that the Court when considering what is reasonable and proportionate to consider all the circumstances including the reasons for the driving.

92.All the circumstances must be considered, but in considering the harm threatened or avoided among the matters to be considered are: -

a) The nature of the threat, bearing in mind the minimum threshold of a threat of serious injury or death.

b) The force threatened.

c) The proximity of the aggressor.

d) The extent to which the threat was imminent.

e) The size, age, gender and physical capabilities of both the aggressor and the accused.

f) The reputation for violence of the aggressor

g) The presence of a weapon.

h) The relationship between the aggressor and the accused, if any. In considering the nature and proportionality of the person’s response among the matters to be considered are :-

a) The charge preferred.

b) The level of intoxication, if any.

c) The endangerment of any person.

d) The size, age, gender and physical capabilities of both the aggressor and the accused.

e) The proximity of the motor vehicle.

f) Any alternative means of escape

g) The availability of the emergency services

h) Any alternative means of seeking help or refuge.

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i) The distance driven.

j) The nature of the vehicle.

k) The condition of the vehicle.

SUMMARY 93.The following principles apply in relation to considering the defence of duress in a driving prosecution: -

1. The defence of duress is available in a prosecution for illegal driving.

2. The accused must adduce sufficient evidence of driving under duress to allow it to be considered by the judge or jury. This is a credible narrative of events suggesting the presence of the various elements of the defence, which must be "established."

3. The relevant tests are in general objective, with reference to the reasonableness of the defendant’s perceptions and conduct.

4. In order to adduce sufficient evidence of driving under duress in my view the Court must hear evidence establishing a credible narrative of the following elements.

a) That the accused reasonably believed he/she or their immediate family or someone close to him or her, or someone for whose safety the accused reasonably considers himself or herself responsible was under threat of death or serious physical violence.

b) That the accused reasonably believed that the threats would be carried out immediately unless he/she drove illegally.

c) That on a reasonable view, the threat would have compelled a sober person of reasonable firmness, of the

26 | P a g e age, sex and other relevant fixed and permanent characteristics of the accused, to drive illegally.

d) The threat was effective in the sense that there was no reasonable avenue of escape, or lawful evasive action open to the accused to avoid the perceived threat and if any reasonable opportunity exists for the accused to take any lawful evasive action, particularly seeking the assistance of law enforcement authorities, it must be taken,

e) That from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury, in particular that the driving episode involved a period of time or distance that was no longer than was necessary in the circumstances, and where the person drives for any period of time or distance beyond the point of immediate fear for his or her life and wellbeing, the defence will not be available.

5 Once the accused adduces such evidence of driving under duress the onus of proof is on the prosecution to prove beyond reasonable doubt that the defence of duress does not apply.

DISCUSSION 94.It is not in dispute that the friends of the accused were assaulted and one of them seriously, requiring a stay in hospital for three days. I am satisfied from the evidence that the accused and his two friends were threatened a second time and that the accused considered himself responsible for his two friends.

27 | P a g e I am satisfied that the threats which consisted of “ get out of the *ing car” and the pulling of the door handles would on a reasonable view be seen as threats of serious violence and having regard to the earlier assault, been so serious as to overcome the resistance of the accused and that the accused had a genuine and reasonable belief that those threats would be carried out immediately. Those threats when combined with the previous assault would have compelled a sober person of reasonable firmness, of the age, sex and other relevant fixed and permanent characteristics of the accused, to drive while intoxicated. Given the immediacy of the threat and the fact that the three friends were effectively trapped in the car there was no reasonable avenue of escape, or opportunity to seek the assistance of the Gardai. 95.The distance driven by Mr Finnerty from when he was first observed at the junction of Oxmanstown Mall and Townsend Street in Birr to where he was stopped close to the service station on Tullamore Road, is approximately 550 meters. 96.The accused, Mr Cowen and Mr Smith all gave evidence and were crossexamined. I am satisfied that they were honest and reliable witnesses, and that the accused has adduced sufficient evidence of duress. 97.That is not to say that I don’t have some doubts. It was not explained at all why when the accused was stopped by Garda Mulvey, he didn’t immediately refer to the two assailants that he and Garda Mulvey had been speaking about 20 minutes earlier. Nor did the accused or either of his two friends mention to the gardaí during the night of the 22nd of November 2022 the threatened assault that caused the accused to drive. One would have expected all three of them, particularly the accused, to refer to the threats being the cause of Mr Finnerty’s driving. 98.The real question here is, were the three forms of illegal driving, as detected by the Gardai up to and including the stopping of the motor vehicle a reasonable and proportionate response to that duress.

28 | P a g e No insurance.

99. The accused is charged with driving without insurance for a distance for approximately 550m. I am satisfied that driving this distance without insurance is a reasonable and proportionate response to the threats made, in a charge of driving without insurance, as the offence themselves does not involve any danger.

100. Having established that the defence of duress was made out it was for the prosecution to prove beyond reasonable doubt that it did not apply and in this regard, they have failed to do so and in the circumstances, I must acquit the accused of driving without insurance and failing to produce an insurance certificate.

Intoxicated driving

101. The level of alcohol recorded on the accused’s intoxilizer test showed a reading of 67 micrograms of alcohol per 100 milliliters of breath. The legal limit for an experienced driver such as the accused is 22 micrograms. There are four categories starting with 22-35, 36-44, 45-66 and finally 67+ and this reading places him just inside the highest category which can result in a mandatory disqualification of three years for a first offence and six for a second or subsequent offence.

102. Given the level of alcohol detected in Mr Finnerty’s breath I am satisfied that he was driving in a highly intoxicated state. Consequently, if he is to satisfy the test set that he acted reasonably and proportionately to avoid a threat of death or serious injury I must ask the question was the distance driven reasonable and proportionate and would a sober person of reasonable firmness, sharing the characteristics of the accused, have driven such a distance as the accused did?

103. The distance to be driven by any intoxicated person must be the minimum required to escape the peril threatened and if the aggressor is on foot it

29 | P a g e appears to me, in normal circumstances, that 500m is more than adequate to escape the immediate threat of a person, or persons on foot, and stop to seek assistance from the Gardaí or some other source.

104. Taking into account the particular circumstances of this case, particularly that this was a threatened second assault following on a previous assault where Mr Finnerty’s friends had already been assaulted and one of them seriously, they were effectively trapped in the car, the escape was effected in a state of panic and there was no time to alert the Gardaí, I am satisfied that in the particular circumstances, even though the distance was at or over the distance where the defence would normally be available, the response was a reasonable and proportionate one.

105. Having established that the defence of duress was made out it was for the prosecution to prove beyond reasonable doubt that it did not apply and in this regard they have failed to do so and in the circumstances, I must acquit the accused of the intoxicated driving charge.

Careless driving

106. The evidence in this case is not disputed and that is that the accused was driving without any lights and was swaying from side to side on the road.

This careless driving involved driving without any lights and swaying from side to side and continued up to the time the accused was stopped. While he is charged with careless driving, in my view the driving involved a serious risk to the accused, his passengers and the public and is at the upper end of careless driving and a charge of dangerous driving could have been sustained in normal circumstances. We are fortunate that there were no other vehicles or pedestrians on the road that evening. In these circumstances where there is no evidence of the accused being pursued, the careless driving, involving as it did a risk of serious injury or death, could only be considered reasonable

30 | P a g e and proportionate for no more than 100m or 200m or if pursued by aggressors on foot then the perhaps a slightly greater distance.

107. In the circumstances of this case, where there was no evidence of any pursuer, while the court could countenance some careless driving, it must have been for the minimum distance necessary, confined to getting out of harm’s way and the defence of driving under duress no longer had any application, as the accused was still driving in a careless manner after 550m.

Accordingly the accused has not established the defence of duress in the charge of careless driving.

108. However, I am cognisant of the Supreme Court’s decision in The People (DPP) v Casey, [2019] IESC 7 when Charleton J said “The Constitution, at Article 34.1, in requiring justice to ‘be administered in courts established by law by judges appointed in the manner provided for in this Constitution’ does more than lay down a procedural framework or merely set up a structure for the system of civil and criminal litigation.

Rather, it devolves ultimate responsibility onto judges to ensure that what occurs in legal actions heard before the courts is the pursuit of justice through a diligent, reasoned, detached and proportionate search for the truth. Article 38.1, in requiring criminal offences to be tried in ‘due course of law’, amounts to an imperative that courts pursue the aim of justice.

In responding to a criminal charge with an account which asserts that while there has been a breach of the law, an outcome of a guilty verdict would amount to an affront to justice, an accused both admits the commission of an offence and also seeks the application of constitutional fairness … That [plea] arises because in some important respect, and unrelated to the elements of the

31 | P a g e offence, or to the capacity of the prosecution to adduce evidence in relation to such elements, the prosecution, or continued prosecution, of the charge would fall short of the constitutional administration of justice.

109. Considering the following unusual and particular facts of this case : -

a) The accused’s earlier responsible actions in taking the keys from Mr Cowen when he had drunk too much alcohol.

b) That the accused had no intention of driving on the night in question.

c) The finding that I have made that the accused was caused to drive under duress while intoxicated.

d) The serious injuries previously sustained by the passengers in the car.

e) The fact that the accused and his friends were effectively trapped in the car.

f) The fact that the accused was effectively forced to drive while in a panic.

g) The fact that there appeared to be no other traffic or road users at the time.

h) The relatively short, albeit excessive, distance driven, I am of the view that in the highly unusual and particular circumstances of this case it would be unjust to convict Mr Finnerty and accordingly I am dismissing the charge of careless driving.

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