Court of Appeal dismisses appeal regarding failure to warn suspect of potential criminal consequences before requesting urine sample.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2023/94 High Court Record Number: 2021/1803 SS Neutral Citation Number: [2025] IECA 197 Edwards J. Butler J. Collins J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTONS (AT THE SUIT OF GARDA DANIEL LYONS)

RESPONDENT

- AND -

JOSEPH TOBIN

APPELLANT

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 3rd day of October, 2025

I. Background to the Appeal

1. This is an appeal against the judgment and order of the High Court (Owens J., [2023] IEHC 260) arising from a case that Judge Gerry Jones, sitting in the Dublin Metropolitan District Court, stated for the High Court in the exercise of his jurisdiction under s. 2 of the Summary Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961.

2. On 3 December 2020, Mr Joseph Tobin (hereafter ‘the appellant’) appeared at a sitting of the District Court at Blanchardstown, Co. Dublin, to answer an allegation that, on 21 March 2018, at Supervalu, Dublin Road, Celbridge, Co. Kildare, a public place in the Dublin Metropolitan District, he drove a mechanically propelled vehicle, registration number 00D40896 (hereafter ‘the vehicle’), while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of that vehicle.

3. Garda Daniel Lyons gave evidence that, on 21 March 2018 at approximately 15:15 hrs, he observed the vehicle appear from English Row, Celbridge, Co. Kildare, a public place. Garda Ryan, who accompanied Garda Lyons in the patrol car, observed the driver of the vehicle putting on his seatbelt whilst in traffic and appearing to stuff something down the side of his seat. Garda Lyons thereafter followed the vehicle onto Dublin Road, Celbridge, Co. Kildare. He observed that the vehicle was being driven in an erratic manner. The driver of the vehicle failed to indicate a right turn and entered the Supervalu car park on the Dublin Road. Garda Lyons observed the driver alighting from the vehicle and entering the Supervalu premises. He appeared to be very unsteady on his feet. Garda Lyons stepped out of the patrol car, walked towards the vehicle and spoke with the passenger. As he did so, he observed a can of beer stuffed between the seats. The driver returned to the vehicle and handed his driving licence to Garda Lyons, which identified him as the appellant. Garda Lyons noticed that the driver’s speech was very slurred, his eyes were bleary and that he was unsteady on his feet.

4. Garda Lyons informed the appellant that he was of the opinion that he had consumed an intoxicant and made a requirement of him, pursuant to s. 9 (2) of the Road Traffic Act (hereafter ‘RTA’) 2010, as amended, to provide a specimen of breath by exhaling into an apparatus designed to indicate the presence of alcohol. Garda Lyons explained that, should the appellant fail or refuse to comply with that requirement, he would commit an offence under s. 9(3) RTA 2010. The preliminary breath specimen provided tested positive for the presence of an intoxicant. Garda Lyons formed the opinion that the appellant had consumed an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place, thereby committing an offence under s. 4(1), (2), (3) or (4) RTA 2010. Garda Lyons cautioned the appellant in the usual manner. The appellant admitted to having consumed two drinks before driving. Garda Lyons arrested the appellant at 15:25 hrs and conveyed him to Leixlip Garda Station, arriving at 15:40 hrs.

5. At Leixlip Garda Station the appellant was processed under the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 and was informed of his right of access to a solicitor and/or to obtain legal advice at any stage during his time in custody. Garda Kelly, who was trained in the operation of evidential breath alcohol analysers, observed the appellant before escorting him to the doctor’s room where a requirement was made of him pursuant to s. 12(1) RTA 2010 and the penalties for non-compliance explained. The appellant elected to provide a sample of his urine. An attempt to take a breath specimen having failed due to a malfunction of the evidential breath analyser, at 17:46 hrs a requirement was made of the appellant pursuant to s. 12(1)(b) RTA 2010 to give a specimen of blood or urine, the penalties for refusing to comply with that requirement being outlined in the usual manner. The appellant opted to provide a specimen of his urine. At 17:54 hrs the appellant was offered a specimen for independent analysis, which he declined to take. Both specimens were thereafter sent to the Medical Bureau of Road Safety (hereafter ‘MBRS’) for analysis. On 3 April 2019 the MBRS issued a certificate which disclosed the presence of 47 mg of alcohol per 100 ml of urine, below the threshold that s. 4(3)(a) RTA 2010 proscribes. On 4 July 2019 the MBRS issued a certificate that recorded the presence of cannabinoids in the sample of urine that the appellant had provided.

6. Under cross-examination, Garda Lyons admitted that he had not explained to the appellant the possible ramifications of providing a sample of his urine, as distinct from a sample of his blood. The appellant’s solicitor applied for a direction of ‘no case to answer’ on the ground that the failure to explain to the appellant that only a blood sample is analysed for the concentration of an intoxicant under s. 4(1A) RTA 2010 had led to his client facing a charge under s. 4(1) thereof, by reason of which he was at risk of being subject to a substantially longer period of disqualification in the event of conviction. Having heard submissions on behalf of the respondent, Judge Jones rejected that application and ruled that the appellant had a case to answer. The appellant did not go into evidence. Judge Jones proceeded to convict the appellant of the offence as charged, imposed a fine of €300 and the mandatory disqualification period of 4 years.

7. Being dissatisfied with that decision, the appellant requested Judge Jones to state a case for the High Court in which he asked the questions following:

1. Was I correct to accept that fair procedures had been afforded to the appellant in circumstances where the ramifications of his

decision to opt between a blood or urine sample were not explained to him?

2. In the circumstances of this case, where the appellant had been informed of his right to access a solicitor at any stage in the proceedings and opted not to invoke that right, would fair procedures dictate a member of An Garda Síochána, once the relevant legal requirement is made to provide a sample of blood or urine, to inform the defendant of the ramification of which sample he provides?

3. Was I correct in law to convict the appellant?

8. In the judgment under appeal, the High Court answered question 1 in the affirmative and question 2 in the negative. As for question 3, he held that it should be answered in the affirmative if it was solely related to the issues canvassed in the first two questions. If the question was whether the District Court Judge had correctly concluded that there was sufficient evidence to convict the appellant, the answer depended upon whether the District Court Judge was of the view that the evidence, other than that contained in the MBRS certificate relating to “CANNABINOIDS CLASS” drugs, had persuaded him of the appellant’s guilt. If the District Court was not of that view, the High Court would answer that question in the negative.

II. Relevant Statutory Framework

9. Section 4 RTA 2010, headed up “Prohibition on driving mechanically propelled vehicle while under influence of intoxicant or if exceeding alcohol limits” creates five offences, four of which may be relevant to the questions in the case stated. Under that provision a person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while:

- he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle (s. 4(1));

- there is present in his or her body a quantity of a drug specified in column (2) of the Schedule such that, within 3 hours after so driving or attempting to drive, the concentration of that drug in his or her blood is equal to or greater than the concentration specified in column (3) at the same reference number (s. 4(1A));

- there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of 50 mg of alcohol per 100 ml of blood (s. 4(2)(a));

- there is present in his or her body a quantity of alcohol such that, within 3 hours after so driving or attempting to drive, the concentration of alcohol in his or her urine will exceed a concentration of 67 mg of alcohol per 100 ml of urine (s. 4(3)(a)).

10. To prove the first of these offences the prosecution must show that the accused person was under the influence of an intoxicant (which s. 3(1) RTA 2010 defines as including alcohol and drugs and any combination thereof) to such an extent as to be incapable of having control of a motor vehicle. A conviction for an offence under s. 4(1) RTA

2010 does not require evidence of the contents of a sample of a person’s blood or urine, the precise quantity of intoxicant that might be found therein being thus irrelevant in that context. The commission of the second and third of these offences requires that the prosecution establish the presence of a statutorily defined quantity of, respectively, a specified drug or alcohol in a sample of a person’s blood. The fourth offence consists in the presence of a statutorily defined quantity of alcohol in a sample of a person’s urine. In contrast to the first offence, to record a conviction for the second, third and fourth of these offences, a sample of blood or urine must be taken from the accused person, which sample is subjected to analysis by a laboratory. The degree of control that the accused person exercised over a motor vehicle at the time of the commission of the alleged offence is, moreover, entirely irrelevant in order to mark a conviction for the second, third or fourth offence. It is also pertinent to observe that s. 4 RTA 2010 does not make it an offence for a person to drive or attempt to drive a mechanically propelled vehicle in a public place whilst a statutorily defined quantity of an intoxicant other than alcohol is present in a sample of his or her urine.

11. Section 12(1)(b) RTA 2010 provides, inter alia, that, where a person is arrested under s. 4(8) thereof, a member of the Garda Síochána may, at a Garda Síochána Station, require that person to permit a designated doctor to take from him or her a specimen of blood or, at that person’s option, to provide for a designated doctor a specimen of urine. By s. 12(3) RTA 2010, a person who refuses or fails to comply with that requirement, or that of a designated doctor to take a specimen of his/her blood or to provide a specimen of his/her urine, commits an offence.

12. Finally, s. 26(1) RTA 1961, as amended, provides that where a person is convicted, inter alia, of one of the offences under s. 4 RTA 2010, the court shall make a consequential disqualification order declaring him or her disqualified from holding a driving licence. Section 26(4)(a)(i) RTA 1961 provides that the period of disqualification for a first offence under s. 4(1) thereof is not less than 4 years. The corresponding period of disqualification for a first offence under s. 4(2),

(3) or (4) RTA 2010 ranges from 6 months in the case of a person convicted of the offence of having a concentration of alcohol in his or her urine not exceeding 107 mg of alcohol per 100 ml to 3 years in the case of a person convicted of the offence of having a concentration of alcohol in his or her urine exceeding 200 mg of alcohol per 100 ml (s. 26(4)(b)(i) RTA 1961, as amended). A first contravention of s. 4(1A) RTA 2010 gives rise to a consequential disqualification order of a duration not less than one year.

III. Analysis

13. At the hearing of this appeal, the parties agreed that, in the light of developments subsequent to the delivery of the High Court judgment, there was no need for this Court to answer the third question in the Case Stated.

14. The first and second questions in effect ask whether fair procedures require that, in the circumstances described in the Case Stated, once a relevant legal requirement has been made of an arrested person to provide a sample of his or her blood or urine, that person must be informed of what both questions describe as “the ramifications” of that choice.

15. Paragraphs 1 and 2 of the appellant’s legal submissions in this appeal elaborate upon these “ramifications” as follows:

The issue to be determined in this appeal is whether a member of An Garda Síochána, when making a demand of a person pursuant to section 12(1)(b) of the Road Traffic Act, 2010, for a specimen of his blood or at his option a specimen of his urine following on from his arrest on suspicion of, inter alia drink or drug driving, should inform the arrested person that if he elects to provide a specimen of his urine then it will not be possible to analyse it for the concentration of the drug, should a drug be detected, and that will only be analysed for the presence of a drug.

As part of that warning the arrested person might also be informed that the consequences of an analysis which determines the presence of a drug as opposed to the concentration of a drug in a specimen of urine may give rise to consequences for him.

16. In response to questions from the bench, Counsel for the appellant further qualified the nature of the warning with which, he submitted, persons arrested in the aforesaid circumstances should be furnished, namely, “…that blood will be analysed for both the presence and concentration of various drugs and that urine will be analysed for the presence of various drugs only, and nothing further than that…” [DAR 14:41]. Counsel thereafter emphasised that he did not contend that the warning need refer to any offences that might have been committed, whether under s. 4(1) or (1A) RTA 2010 or otherwise, or to any disqualification that might follow upon proof of their commission.

17. Given that the appellant stands convicted of an offence under s. 4(1) RTA 2010, the constituent elements of which do not require proof of the presence of an identifiable level of an intoxicant in a sample of a person’s blood or urine, it is difficult to understand how the utterance of the warning described in the last paragraph would assist in his defence, other than that its absence, if required by law, would have laid the ground for an application of “no case to answer”. Nothing in the Case Stated indicates that Garda Lyons suspected at any time that the appellant had consumed an intoxicant other than alcohol: even had he had such a suspicion, the constituent elements of the offence under s. 4(1) RTA 2010 are that a person is under the influence of an intoxicant to such an extent as to be incapable of having control of a motor vehicle in a public place. Under caution, the appellant admitted to Garda Lyons that he had consumed alcohol prior to his arrest, which evidence was uncontested. The MBRS thereafter certified that the sample of the appellant’s urine contained a concentration of alcohol well below the threshold specified in s. 4(3)(a) RTA 2010. The applicant was informed of his right of access to a solicitor and/or to obtain legal advice at any stage during his time in custody, which right he chose not to exercise. Speculation as to what the appellant’s position might have been had the suggested warning been given, or had he been deprived of a right to receive that warning, are not matters properly before this Court in the context of answering a case stated under s. 2 of the Summary Jurisdiction Act 1857: see DPP (Lavelle) v. McCrea [2010] IESC 60 per Hardiman J. (nem. diss.) at paras. 24 to 27, which conclude: “[i]n conformity with the long standing practice of the Superior Courts, it is unnecessary, and would be wrong, to speculate what the result might have been had the facts been slightly different in one way or another and we do not do so.”, followed in DPP v. Pires & Ors. [2018] IESC 51 per Dunne J. (nem. diss.) at para. 21.

18. The logic of the appellant’s submissions appears to come down to a suggestion that, where a person might not have committed a concentration offence, here because a sample of the appellant’s urine was not tested for the concentration of an intoxicant, it is inconsistent with fair procedures that the respondent charge him or her with an offence of having been incapable of driving a motor vehicle. The answer to that submission is to be found at para. 64 of the judgment under appeal, which explains that:

Charging is a matter for the Director of Public Prosecutions. No defendant has a legitimate expectation that the Director of Public Prosecutions will elect not to charge for a particular offence if there is potential evidence which supports conviction on that charge. The Director of Public Prosecutions is not obliged by law to elect to prosecute on either s.4(1) or s.4(1A), (2), (3) or (4) of the 2010 Act. The same set of facts may support convictions for a “drunk driving”, “over the limit for scheduled drugs driving” and “over the limit for alcohol” driving.

19. Without proof of any actual prejudice that he may have suffered due to the absence of the warning described at para. 16, above, being given, the appellant is driven to contend for the proposition that fair procedures require that, when a demand is made of a person pursuant to s. 12(1)(b) RTA 2010, the delivery of such a warning is mandatory as a matter of law. Counsel for the appellant referred the Court to four authorities which he submitted supported that proposition: DPP v. Mangan [2001]

2 I.R. 373; DPP (Deegan) v. Murphy [2002] IEHC 79; DPP v. McDonagh [2009] 1 I.R. 767; and DPP (Keoghan) v. Cagney [2013] 1 I.R. 493.

20. In DPP v. Mangan [2001] 2 I.R. 373 Keane C.J. (nem. diss.) held at 380-1 that Generally speaking, the defendant or putative defendant to criminal proceedings cannot be required to assist the prosecution in the ultimate conduct of their case by incriminating himself or herself. While there are statutory exceptions to this principle - of which s. 13 is one - a prosecutor who seeks to rely on them must satisfy the court by the adduction of affirmative evidence that, at the minimum, the person concerned was informed at the time that he was obliged by statute to provide the appropriate information or material - in this case a specimen of blood or urine - and that he would be committing an offence and exposing himself to penalties if he failed to comply with that requirement. Were it otherwise, in a case under s. 13 a person might find himself convicted of an offence where a demand had been made of him without any indication as to the legal basis for the demand. That, it was held in Director of Public Prosecutions v McGarrigle [[1996] 1 I.L.R.M. 271], was not the law.

21. Mangan is no more and no less authority for the proposition that, where a failure to comply with a requirement that may cause a person to incriminate him or herself constitutes an offence, that person must be informed of the legal basis upon which that requirement is made and that non-compliance therewith is an offence, the commission of which risks the imposition of penalties. The warning described at para. 16, above, consists of information as to the nature of the analysis of samples obtained from a person whom the law requires to provide same. The proposed warning does not impose or qualify the obligation to provide those samples, nor is it an offence to choose one of the options presented. A person who is under a requirement to produce a sample in such circumstances is always entitled to obtain legal advice: the appellant chose not to despite being informed of his right of access thereto.

22. In DPP (Deegan) v. Murphy it was contended on behalf of the accused that where a demand was made of her under s. 13(1)(b) RTA 1994 to provide a sample of her blood or urine, the member of An Garda Síochána was, in addition to the requirements described in Mangan, required to explain the nature and extent of any consequential disqualification upon conviction for the offence of refusing to provide that sample. After citing the passage in Mangan reproduced at para. 20, above, Ó Caoimh J. held that the information that a member of An Garda Síochána was required to communicate to an arrested person in such circumstances was limited to the existence of penalties for a failure to comply with the statutory requirement. That information was neither required to describe those penalties nor to inform that person of any consequential disqualification, the latter which was not, in any event, a penalty pace Attorney General v. Conroy [1965] I.R. 411.

23. The approach in DPP (Deegan) v. Murphy, which this Court affirmed in DPP v. McTigue [2019] 1 I.R. 821 at 827, confirms that arrested persons are entitled to be given certain information in circumstances where they are exposed to a risk of committing an offence by their acts or omissions. The exercise of the choice to provide a blood or a urine sample, as distinct from a decision not to provide either, does not constitute an offence. DPP (Deegan) v. Murphy is thus authority for the proposition that such information as must be communicated is limited to that necessary to allow a person to avoid committing an offence. The information in the warning contended for here is not of that character.

24. The appellant relies on a number of references in the judgment of Denham J. (Macken J. conc.) in DPP v. McDonagh [2009] 1 I.R. 767 at

779 - 780 to the effect that the process leading to the creation of a certificate for the purposes of s. 17 RTA 1994, which required that an accused person voluntarily incriminate him or herself, must comply with fair procedures. Section 17(1) of the RTA 1994 provided that, where the two specimens taken record different concentrations of alcohol, in any relevant prosecution account is to be taken of that which contains the lower amount. The consultative case the Circuit Court stated under s. 16 of the Courts of Justice Act 1947 disclosed that the accused had complied with a requirement under s. 13(1)(a) RTA 1994 to provide two specimens of his breath: on his first attempt the intoxilyzer failed to provide any reading: on his second attempt the intoxilyzer recorded his first, but not his second, effort: on his third attempt the intoxilyzer recorded both efforts. The prosecutor charged the accused by reference to the two specimens recorded on his third attempt, thereby disregarding the single specimen that he had provided on his second. In circumstances where the legislation expressly required that the accused provide two specimens of his/her breath and that in any relevant prosecution account was to be taken of the lower of the two readings, the Supreme Court held that the prosecution could not rely on the second and third specimens: the judgment of Finnegan J. (with which Macken J. also concurred, the Supreme Court being of one mind as to the answer to the case stated) at [2009] 1 I.R. 767 at 791 refers. The fair procedures to which Denham J. referred in her judgment were thus ascertained in, and derived from, the precise statutory context in which the Supreme Court answered the case stated. The circumstances that arose for consideration in DPP v. McDonagh did not involve steps taken prior to an arrested person being required to provide evidence that might incriminate him or her. Nor did it involve circumstances where such a person is at risk of committing an offence or being permanently deprived of the benefit of a constitutionally protected defence, as a result of his or her action or inaction. DPP v. McDonagh thus pertains to issues other than those that fall to be decided in this appeal.

25. In DPP (Keoghan) v. Cagney, the defendant was prosecuted under s. 13 RTA 1994 for a failure to comply with a requirement to provide a breath sample in circumstances where a transient medical condition had prevented her from so doing. The question arose as to whether she ought to have been alerted to the fact that she was obliged to offer to provide a specimen of her blood or urine in order to rely on the defence of special and substantial reason for that failure. The Supreme Court (Clarke J., nem. diss.), referring, inter alia, to DPP v. Mangan, observed at para. 28 of the judgment:

…, it is clear from the line of authority to which reference has been made that, at least in the circumstances then under consideration, this court was prepared to imply in such an obligation. It follows that, at least at the level of principle, it is possible that there may be obligations placed on members of An Garda Síochána who are involved in applying the relevant provisions of the Road Traffic Acts, to inform persons of the consequence of failure to act. Those cases were, of course, concerned with a situation where a party was being required to give a sample or specimen, where failure so to do amounts to an offence and where it was held that such circumstances amounted to a significant departure from the normal position which pertains in respect of accused persons being that they are not obliged to do acts which might incriminate themselves.

26. At paras. 32 to 38 of its judgment, the Supreme Court read into s.

23 RTA 1994 an obligation on the part of the Garda involved to alert a person to the requirement to offer a blood or urine sample so as to be in a position to avail of the defence of a special and substantial reason contained therein. An absolute offence of failing to provide a breath sample to which there was no defence by reason of inability or incapacity would be open to constitutional challenge as a disproportionate interference with the rights of an accused person. The Constitution thus required that a person who suffered from such an inability or incapacity had available to him or her some form of defence on that ground.

The constitutional backdrop to the Supreme Court’s case-law to find inherent in the Road Traffic Acts a requirement to warn persons who are required to give a sample as to the consequences of their failure so to do was that individuals are not usually obliged to take steps that might incriminate them. The requirement, under pain of criminal penalty, to provide upon demand a sample that might establish the commission of an offence of drunk driving was a permissible deviation from that constitutional regime. Although ordinarily there is no obligation on an investigating Garda to alert a person under investigation to any possible defences to that offence, where legislation, for reasons of constitutional necessity, acknowledges that it is appropriate to afford persons who may not have the ability or capacity to give a breath sample a defence on that ground, it would be an insufficient vindication of those persons’ rights if they could lose an entitlement to rely upon that defence due to ignorance on their part.

In the vast majority of cases where a person is investigated in respect of an offence an available defence will be derived from the circumstances surrounding the events that are said to constitute the alleged crime. An individual who is under such investigation is not precluded from relying upon a defence because s/he said nothing about the facts that might ground that defence. In contrast, a failure to offer a blood sample deprives an accused person of a defence under s. 23 RTA 1994. When that factor is coupled with the aforementioned constitutional justification, the defence in s. 23 RTA 1994 was in a different category to most defences that are available at criminal law.

“In those unusual circumstances” the Supreme Court was prepared to impose “…an obligation on a member of An Garda Síochána, either when giving the original warning required by the line of authorities starting with Director of Public Prosecutions v McGarrigle (1987) [1996] 1 ILRM 271 or, if not then given, after a person has failed or refused to give a breath sample, to alert that person to the fact that, in order to rely on a defence of special and substantial reason for their failure or refusal, the person concerned must offer to provide blood or urine.”

27. Neither of the “unusual circumstances” that the Supreme Court relied upon in DPP (Keoghan) v. Cagney is present here. The constitutional backdrop as described in that judgment is absent. The appellant was charged under s. 4(1) RTA 2010, proof of which does not require evidence of the presence of a given concentration of an intoxicant in a sample of an accused person’s blood or urine. That the appellant might have demonstrated that the concentration of an intoxicant other than alcohol in his blood was below the limit prescribed by law was therefore irrelevant, illustrated by the fact that, notwithstanding that the concentration of alcohol in his urine was assessed as being within the permitted limit, he was convicted of an offence under s. 4(1) RTA 2010. Unlike the position in DPP (Keoghan) v. Cagney, the appellant was not, moreover, deprived of any defence that might have been available to him had the warning described at para. 16, above, been uttered prior to his election to provide a sample of his urine. That the consequence of the appellant providing a urine sample was that he could not be convicted of a concentration offence in respect of an intoxicant other than alcohol could not be described as putting him at any disadvantage.

28. Contrary to submissions made, neither DPP v. Mangan, DPP (Deegan) v. Murphy, DPP v. McDonagh nor DPP (Keoghan) v. Cagney support the propositions advanced on the appellant’s behalf in this appeal. They instead appear to represent authority for the proposition that, in the context of prosecutions for offences created under the statutory framework described at Part II, above, a person who is lawfully required to provide evidence that might incriminate him or her or who, as a result of his or her action or inaction, is at risk of committing an offence or of being permanently deprived of the benefit of a constitutionally protected defence, is entitled to be warned of the penal consequences that may follow from his or her acts or omissions. Other than in these particular circumstances the law imposes no other obligation upon those members of An Garda Síochána who are called upon to operate the said statutory framework to provide information to persons suspected of having committed offences thereunder.

IV. Conclusion

29. The appellant having neither submitted proof of any actual prejudice that he may have suffered due to the absence of the warning described at para. 16, above, nor demonstrated that fair procedures require that a member of An Garda Síochána deliver such a warning as a matter of law when he or she makes a demand of a person pursuant to s. 12(1)(b) RTA 2010, I propose to answer Question 1 in the Case Stated in the affirmative and Question 2 in the negative.

30. I therefore propose to dismiss the appeal and to affirm the judgment and the order of the High Court save insofar as it answered Question 3 in the Case Stated.

31. I do not propose to disturb the order for costs in the High Court. No application has as yet been made for the costs of this appeal. Should the respondent seek an order for those costs as against the appellant, she should cause to have filed and served a written submission of not more than 1,500 words within 14 days of the delivery of this judgment, after which the appellant will have a further 14 days in which to respond by lodging and serving a reply of no greater length.

32. As this judgment is delivered electronically, Edwards and Butler JJ. have authorised me to state that they agree with it and the orders proposed therein.

Appearances:

For the Appellant: Justin McQuade, instructed by Sheehan and Partners LLP

For the Respondent: Kate Egan, instructed by the Chief Prosecution Solicitor