High Court quashes District Court order where statutory presumption failed due to missing chain of custody evidence.

[2025] IEHC 428

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/467 JR

BETWEEN

ANDREJS RATINSKIS Applicant -and-

DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGMENT of Ms Justice Sara Phelan delivered on the 30th day of July 2025

TABLE OF CONTENTS

Introduction .............................................................................................................................. 2

Factual Background................................................................................................................. 2

Procedural Background .......................................................................................................... 5

Statutory Framework .............................................................................................................. 6

Discussion................................................................................................................................ 10

The statutory presumption ................................................................................................... 10

Is judicial review an appropriate remedy? ........................................................................... 22

Conclusion .............................................................................................................................. 28

Costs ........................................................................................................................................ 28

Page | 1

Introduction

1. This judgment addresses the remit of a statutory presumption upon which the State seeks to rely in the prosecution of intoxicated driving offences under the Road Traffic Act 2010 (“the RTA 2010”) and, more particularly, whether such statutory presumption encompasses the ‘custody’ of a specimen of blood or urine between the taking of such specimen in a Garda station and its subsequent transfer to the Medical Bureau of Road Safety (“the Bureau”) for analysis.

2. The applicant’s case is that, in the circumstances of his prosecution, the statutory presumption did not cover the custody of the specimen and where chain of custody evidence was not called by the State during the prosecution in the District Court, he is entitled to an order of certiorari by way of judicial review, quashing the order of the District Court made on 10 January 2024, whereby he was convicted and sentenced to a two-year driving ban and a fine of €350 for driving under the influence of an intoxicant.

3. However, in addition to addressing the remit of such statutory presumption, this judgment must also address whether or not an application by way of judicial review was the appropriate remedy for the applicant in the circumstances.

4. For the reasons set out hereunder, the relief sought is granted.

Factual Background

5. The applicant was stopped at a mandatory Garda checkpoint by a member of An Garda Síochána, Garda Liam Houlihan, at approximately 23:12 on 20 August 2022.

The applicant was asked for his licence and a breath specimen and he requested that a blood specimen be taken instead. The applicant was arrested at the scene by Garda Houlihan (on the basis that, in Garda Houlihan’s opinion, the applicant had committed an offence under s.10(7) of the RTA 2010) and he was conveyed to

Page | 2 Newbridge Garda station, where a blood specimen/sample (“the specimen”) was taken at 00:37 on 21 August 2022 by an attending designated doctor.

6. In accordance with the statutory procedure (which is set out in greater detail at §17 hereunder), the doctor halved the specimen into two glass bottles, he sealed the bottles in separate containers with stickers containing the applicant’s name and date of specimen, and he handed the two containers, sealed with a numbered red seal, to Garda Houlihan. The doctor then filled out the doctor’s form (“the s.15 form”)

as more particularly referred to at §15 hereunder.

7. Then, and again in line with the statutory procedure, Garda Houlihan gave the applicant the option of choosing one sealed container and the applicant chose a sealed container, which was then given to him by Garda Houlihan. Garda Houlihan subsequently placed the remaining sealed container and the s.15 form in a marked cardboard box and sealed same.

8. Thereafter, the sealed container in the marked cardboard box was posted to the Bureau and the Bureau returned a certificate (“the s.17 certificate”) dated 29 August 2022 to Newbridge Garda station, upon which it was certified that on analysis by the Bureau the specimen contained a concentration of 126 milligrams of alcohol per 100 millilitres of blood. This concentration, being in excess of the permitted concentration of 50 milligrams of alcohol per 100 millilitres of blood as provided for at s.4(2)(a) of the RTA 2010, resulted in the applicant being prosecuted for an offence under the RTA 2010.

9. The trial of the matter proceeded before the District Court on 10 January 2024 and Garda Houlihan gave evidence that he placed the remaining specimen and the s.15 form in a cardboard box and sealed same and posted the sealed specimen to the Bureau on 22 August 2022. However, Garda Houlihan, in the course of his direct evidence, did not account for the custody/whereabouts of the specimen between 00:37 on 21 August 2022 and the time of posting on 22 August 2022 and further, the applicant’s solicitor did not cross-examine Garda Houlihan in relation to the storage/security of the specimen during this period. Nor, it was submitted on behalf of the applicant in written submissions to this Court, did Garda Houlihan account

Page | 3 for the custody of the specimen in his statement provided in advance of the prosecution in the District Court. The exact time of posting on 22 August 2022 was not provided at the hearing of the judicial review application but it is clear from the District Court transcript that the applicant’s solicitor had sight of the Garda receipt book during the course of the hearing in the District Court and, in any event, the decision of this Court does not turn on the time of posting per se.

10. The applicant’s solicitor sought a direction from the District Court Judge at the end of the prosecution case, submitting that the chain of custody for the specimen was not complete, and that no evidence had been provided as to where the specimen had been stored between the taking of the specimen and the posting of the specimen to the Bureau, and evidence was not adduced by the State in relation to the particulars of the storage, for example:

a. where was the specimen kept?

b. was the specimen kept in a locker?

c. if so, who had access to the locker?

The applicant’s solicitor submitted that it was incumbent upon the prosecution to satisfy the Court that the chain of evidence was complete, citing DPP v. AMcD (discussed in greater detail hereunder), and that in the absence of chain of custody evidence, the specimen had been ‘invalidated’ and the prosecution should not proceed.

11. Had the District Court acceded to this application for a direction, the case against the accused would have been dismissed and no conviction would have been recorded against the accused. However, the application for a direction was refused by the District Court and, the transcript of the hearing in the District Court having been exhibited on affidavit in the context of the judicial review application, it is clear that the grounds for such refusal were that:

a. the legislation contained various presumptions in relation to specimens and what happened to them and “when eventually the certificate comes out, there are various presumptions that [the specimens] weren’t interfered with” (per the transcript of the hearing – however, the District Court Judge did not go into further detail as to the wording of, or import of, the presumptions);

Page | 4 b. there was no evidence (from the Bureau) that there was any interference with the specimen;

c. the specimen was sealed;

d. the defence did not cross-examine Garda Houlihan as to the chain of custody (referred to by the applicant’s solicitor as the chain of evidence), or where the specimen was kept between the taking of the specimen and the forwarding of the specimen to the Bureau.

12. The applicant then gave evidence in the context of the District Court prosecution and he was subsequently convicted and sentenced as set out at §2 above.

Procedural Background

13. Following an ex-parte leave hearing on 29 April 2024 (and an application having initially been made ex-parte on 08 April 2024), leave was granted by the High Court permitting the applicant to apply by way of judicial review for the reliefs as specified in the statement of grounds filed on 03 April 2024, being inter alia an order of certiorari, quashing the order of the District Court made on 10 January 2024 and as more particularly set out at §2 above. The applicant swore an affidavit on 02 April 2024 in support of the matters set out in the statement of grounds, and an affidavit was also sworn by his solicitor on the same date.

14. A statement of opposition was filed by the respondent on 23 September 2024, and Garda Houlihan swore an affidavit on 24 September 2024 in support of the matters set out in the statement of opposition, which said affidavit exhibited:

a. the transcript of the hearing in the District Court on 10 January 2024;

b. the s.15 form completed by the attending designated doctor, having taken the specimen on 21 August 2022;

c. the s.17 certificate completed by the Bureau on 29 August 2022, upon analysis of the specimen.

15. The s.15 form contained the following information:

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

Page | 5 (details provided: Andrejs Ratinski [other personal details also provided]);

2. Nature of specimen (details provided: Blood);

3. Place at which specimen was taken or provided (details provided: Newbridge Garda Station);

4. Date on which specimen was taken or provided (details provided: 21 Aug 2022);

5. Time at which specimen was taken or provided (details provided: 00:37 am);

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)

(details provided: Naas Garda Station [albeit this information was not required since the specimen had not been taken or provided in a hospital]);

And the s.15 form then contained the following declaration “I, the undersigned designated doctor or designated nurse

(a) took from the person named at 1 above the specimen of blood to which this form relates.

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

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

Signature of designated doctor or designated nurse … (signature provided)”

16. Insofar as they are relevant to this judgment, the matters relied upon by the applicant and the respondent respectively in the statement of grounds and statement of opposition are discussed below.

Statutory Framework

17. Chapter 4 of the RTA 2010 deals with the procedure in relation to providing a specimen at a Garda station and s.15 of the RTA 2010, entitled “Procedure

Page | 6 regarding taking of specimens of blood and provisions of specimens of urine”

provides, insofar as relevant to this judgment:

“(1) Where under this Chapter a designated doctor … has taken a specimen of blood from a person … the doctor … 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.

(2) Where a specimen of blood … 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 – …

(b) … 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) …

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

(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.”

18. Section 17 of the RTA 2010, entitled “Procedure at Bureau regarding specimens”

provides, insofar as relevant to this judgment:

“(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 … :

(a) the concentration of alcohol in the specimen;

…

(3) As soon as practicable after compliance with subsection (1), the Bureau shall … 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.”

Page | 7

19. Chapter 5 of the RTA 2010 deals with evidential matters and s.20, entitled “Provisions regarding certain evidence in proceedings under Part 2”, provides inter alia:

“(2) A duly completed form under section 15 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Act 1961 to 2023 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 … 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 Act 1961 to 2023 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.”

20. The content of the s.15 form and the s.17 certificate is provided for by way of Regulation, and the Road Traffic Act 2010 (Sections 15 and 17) (Prescribed Forms)(Amendment) Regulations 2020 were in force at the relevant time. No issue was taken with the specific content of the form, or with the specific content of the certificate, at hearing.

21. It is clear from the foregoing that s.15(4) and s.17(4) contain a presumption that in the prosecution of certain offences – which include the offence with which the applicant was charged – the preceding sub-sections in each section have been complied with “until the contrary is shown” and the practical application of these presumptions is that the contents of the s.15 form and the s.17 certificate may be admitted as evidence in Court – generally referred to as certificate evidence – without the authors of the forms being called to give evidence. This presumption relieves the State of having to call witnesses to prove that the steps as set out in s.15(1), s.15(2) and s.15(3) – and likewise with s.17 – were correctly carried out and the presumption is in ease of an otherwise administrative burden.

22. The nature and purpose of certificate evidence was reviewed by O’Malley J in Power v. Hunt [2013] IEHC 174; [2013] IR 3 IR 709, a case concerning two

Page | 8 certificates of analysis of a single specimen, and whether both could be relied upon by the District Court, where she stated at §25 and §26 “It must be remembered that the reason that such evidence is permitted under various criminal statutes is to enable the prosecution to give evidence of the prescribed matters without having to call oral evidence thereof. The sole point is to make admissible what would otherwise be hearsay. In such cases, the certificate covers the admissibility of its own contents.

In the context of a drink or drug-driving case that means that the prosecution does not have to call witnesses from the Bureau to prove how the analysis was carried out or what the findings of the analysis were, along with other issues such as, for example, the chain of custody of the sample within the Bureau and thereafter. The certificate is given evidential status, but only for the purpose of the specified proceedings – that is, for the purposes of prosecution under the specified provisions of the Road Traffic Acts.”

23. And again, the special nature of certificate evidence – particularly in the context of so-called ‘drunk driving cases’ – was summarised by Clarke J (as he then was) in DPP v. Cullen [2014] IESC 7; [2014] 3 IR 30 where he stated at §2.2 “… evidence concerning alcohol concentration is not normally (or, in practice at all) established at the hearing of a drunk driving case in a way which corresponds with the ordinary rules of evidence … in order to establish facts by forensic evidence in the ordinary way, a series of witnesses frequently have to be called. For example, fingerprint evidence is normally established by calling a witness who took fingerprints from a crime scene, a witness who can verify the fingerprints of the accused and expert testimony to suggest that the respective fingerprints come from the same person. ... In theory, there is no reason why, for example, evidence of the concentration of alcohol in a driver’s blood, urine or breath could not be given in the same way. Evidence establishing the relevant sample could be given. Evidence demonstrating the custody of the sample between its being taken and it being tested in a laboratory could be added. An expert from the laboratory could be called to give an expert view as to the relevant concentration. All of this would, of course, be very cumbersome and make the prosecution of drunk driving cases very difficult. It was, for that reason, that, from the earliest times when drunk driving was defined by reference to alcohol concentration, the relevant legislation provided for the use of a certificate to prove such alcohol concentration. However, it is important to emphasise that such a certificate would not, in an ordinary case and in the absence of enabling legislation, be evidence. It is only because the statutory regime permits such a certificate to be given as evidence that it is admissible at all. Thus compliance with the statutory regime is in the nature of a condition precedent to the admissibility of the evidence in the first place, for

Page | 9 in the absence of such compliance, the certificate simply would not be evidence in the ordinary way.”

Discussion

24. Although both parties – in oral and written submissions – dealt with the appropriateness of judicial review as a secondary issue, it seems to this Court that the question of whether judicial review was the correct remedy should first be answered, before moving on to the remit of the statutory presumption as set out in s.15 of the RTA 2010. But, in a circular way, to answer the question as to the appropriateness of judicial review, the Court must fully engage with the statutory presumption, and thus it is to this issue that the Court first turns.

The statutory presumption

25. The question to be answered as regards the statutory presumption (“the presumption”) is very net and may be summarised as:- whether or not the presumption covered the ‘custody’ of the specimen in the interregnum between the taking of the specimen in the Garda station and its subsequent transfer to the Bureau for analysis? If so, the prosecution were entitled to rely upon the presumption, and the applicant’s case is bound to fail. If not, then the applicant must succeed, subject to whether or not the application was properly brought by way of judicial review.

26. First and foremost, it is clear that the presumption as set out at s.15(4) of the RTA 2010 is not a stand-alone presumption, and it must be read in conjunction with s.20(2) of the RTA 2010. The relevant sub-sections of both s.15 and s.20 are set out at §17 and §19 above but bear repeating:

section 15(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.”

and, in the particular circumstances of this case, subsections (1) to (3) of s.15 covered:

Page | 10

- the designated doctor taking a specimen of blood;

- the designated doctor dividing the specimen into 2 parts;

- the designated doctor placing each specimen into a container and sealing same immediately;

- the designated doctor completing the s.15 form;

- Garda Houlihan offering one of the sealed containers to the applicant and informing the applicant that he may retain either of the containers;

- Garda Houlihan, as soon as practicable thereafter, causing the s.15 form and the sealed container (being the container not retained by the applicant)

to be forwarded to the Bureau.

section 20(2)

“A duly completed form under section 15 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Act 1961 to 2023 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.” (emphasis supplied)

27. In short, the applicant’s case was that s.15 and s.17 of the RTA 2010 covered the ‘start of the process’ and the ‘end of the process’ respectively, and the issue in the judicial review application concerned what happened ‘in between’. The question was:- whether the seal certified the chain of custody beyond question? In other words, where there was a delay in the forwarding of the specimen, with the specimen being kept in an unspecified location and ‘unaccounted for’ for a period of time, was there an obligation on the prosecution to adduce chain of custody evidence, so as to satisfy the Court as to the integrity of the specimen?

28. The applicant contended that the obligation (to satisfy the Court as to the integrity of the specimen) was on the prosecution front and centre, rather than there being any obligation on the accused to cross-examine a Garda as regards the storage or security of the specimen or to seek to rebut the s.15(4) presumption by ‘showing to the contrary’. If the presumption were there to benefit/assist the prosecution from an administrative perspective, it was the applicant’s case that it must be construed

Page | 11 in a literal sense and in the sense that was meant and intended for by the legislature, and it was a stretch of incredible proportion to suggest that the legislature intended that the chain of custody as regards a specimen would be satisfied by a doctor/nurse sealing the specimen in presence of a Garda and then leaving the Garda ‘at large’ to transmit the specimen at a remove from the sealing. Further, the applicant contended that chain of custody evidence should have been called by the State in the District Court and it was not for the applicant to ‘plug this gap’ by crossexamining the Garda as regards storage or custody of the specimen.

29. The applicant, in submitting that the burden always fell on the prosecution to prove that real evidence had been properly kept in a manner free from tampering or interference, relied specifically on the decision of the Supreme Court in DPP v.

AMcD [2016] IESC 71; [2016] 3 IR 123, where McKechnie J noted at §60 that since CCTV footage did not enjoy any evidential presumption, CCTV evidence had to be proven in an appropriate manner and to the required standard by establishing the provenance and authenticity of the footage and that the party seeking to adduce such evidence must be able to account for its history from the moment of its recording until its production in court, to exclude the possibility that it may have been interfered with.

30. In summary, the respondent submitted that AMcD concerned the continuity of real evidence where the prosecution did not have the benefit of specific statutory presumptions concerning the certification of evidence, and thus it had no application to the present case – where the prosecution had the benefit of the presumption as set out at s.15(4) of the RTA 2010 – and in order to rebut the s.15(4)

presumption the applicant had to engage with the evidence, discharge the evidential burden and ‘show to the contrary’, which the applicant did not do. The respondent’s case was that the statutory presumption in this case was, and remained, effective and given that Garda Houlihan had not been cross-examined, for example, regarding what had happened to the specimen or regarding the integrity of the specimen or regarding interference with the specimen, the Bureau and the Court could be satisfied as to the reliability of the specimen and the results of the analysis. The respondent relied on the decision of Henchy J in DPP v.

Collins [1981] ILRM 447 to the effect that it was not sufficient for the applicant to

Page | 12 merely suggest that the absence of evidence could lead the Court to conclude that there was an invalidation of the specimen and such mere suggestion was not sufficient to discharge the evidential burden of proof which lay on an accused. The admissibility of the s.15 form was unaffected by the absence of evidence as to where the specimen was ‘stored’ prior to transmission to the Bureau. The issue of ‘invalidation’ as raised by the applicant was different to absence of proof and the question was:- what had to be given in evidence to prove the case?

31. In considering the extent or reach of the presumption, the Court must look to the proofs that were before the District Court and the nature of the certificate evidence considered by the District Court. And, insofar as s.15 is concerned, the s.15 form was signed by the designated doctor and contained the information set out at §15 above, with no issue being taken in either the District Court or this Court as to the contents of the s.15 form.

32. The presumption as provided for by s.15(4) simply states that “it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with”

and in the circumstances of this case, the applicant did not take issue with compliance, save that it was argued before this Court that Garda Houlihan did not forward the sealed container to the Bureau “as soon as practicable” and therefore there was an issue as regards the provenance and integrity of the specimen or, as argued before the District Court, there was an ‘invalidation’ of the specimen (see §10 above).

33. Moving then to s.20(2) of the RTA 2010, a duly completed s.15 form “shall, until the contrary is shown, be sufficient evidence … of the facts stated in it” and “shall, until the contrary is shown, be sufficient evidence of compliance by the designated doctor … with the requirements imposed on him …”.

34. It is abundantly clear that nowhere in s.15 of the RTA 2010, nor on the s.15 form, is it stated or provided that a presumption applies to the effect that the specimen was stored securely or to the effect that once the s.15 process was duly completed the integrity of the specimen was preserved and furthermore, s.20(2) of the RTA 2010 does not assist in this regard.

Page | 13

35. Whilst counsel for the applicant focussed to some extent – in written and oral submissions – on the “as soon as practicable” requirement in s.15(3) of the RTA 2010 (and indeed a number of the authorities opened to the Court also focussed on “as soon as practicable”), it seems to this Court that the issue is a more fundamental one, being that neither s.15 nor s.20 of the RTA 2010, nor the s.15 form, provide for a presumption that the integrity of the specimen remained intact or that the specimen was stored in such a manner so as to ensure that it was not interfered with.

36. For the reasons as set out at §34 above, it is the view of this Court that the certificate evidence cannot cover the chain of custody and thus, the need for the prosecution to adduce chain of custody evidence in the District Court was not obviated. This Court discussed the extent of the presumption with counsel for the respondent during the course of the hearing – posing the question that the presumption only availed the medical practitioner, the Garda and the Bureau to the extent as set out in the RTA 2010 and/or on the form (and there was nothing in the RTA 2010 and/or on the form, apart from “as soon as practicable”, to cover the integrity of the specimen between ‘taking’ and ‘sending’) – and counsel for the respondent submitted that the seal was the presumption and that the seal ‘locked the door’ on the specimen until it was opened by the Bureau, unless the contrary was shown.

The difficulty with this argument from this Court’s perspective, is that this is not what s.15 or s.20 of the RTA 2010 provide for, and neither is it what the s.15 form states, and thus there was thus a gap in the evidence adduced in the District Court.

Yes, there is a presumption that the designated doctor or nurse sealed the container but the presumption goes no further than this, and certainly, in the view of this Court, not as far as that contended for by the respondent.

37. The fact of there being a gap in the evidence was considered by O’Neill J in DPP v. Whelan (Unreported, High Court, ex tempore (on appeal by way of case stated from the District Court), 02 February 2009) and in the particular circumstances of that case, the Court found that gaps in the chain of evidence – such that firstly; a certificate tendered in evidence in the District Court which related to the accused did not identify the sample referred to as the one taken from the accused and

Page | 14 secondly; the Garda who sent the bag containing the seized items to the forensic laboratory did not give evidence – were significant and unacceptably wide and could not be closed by the evidence identified by the prosecution and that the prosecutorial burden of proof could not be shifted onto an accused. O’Neill J stated at p.3 of his judgment “It is to be observed that when a particular evidential status is accorded to certificates it is crucially important that the steps taken are established. Great care must be taken to to [sic] ensure this is so. The reason is clear: if a person may be convicted essentially on the basis of a piece of paper, it is of crucial importance that the steps that are taken to produce that result are taken properly and, to use a famous and popular phrase, with openness and transparency.

Otherwise, the only means accused persons would have of defending themselves would be to attempt to call evidence to prove or demonstrate that steps were not taken properly. That is why, when it is possible to convict substantially by means of certificate evidence, the necessary preliminary steps must be proven.

In other words, it is not tolerable to have substantial gaps in the evidence leading to the tendering of the certificate.”

38. Whilst Whelan was not a case involving a prosecution under the Road Traffic Acts (and it is important to note that the misuse of drugs legislation to which Whelan related did not contain equivalent statutory presumptions and thus it was not ‘on all fours’ with the present case), Whelan becomes very relevant in circumstances where this Court has found that neither s.15 nor s.20 of the RTA 2010, nor the s.15 form, provided for a presumption that the integrity of the specimen remained intact, and therefore the need for the prosecution to adduce chain of custody evidence was not obviated. This being so, the prosecutorial burden in the present case remained on the prosecution at all times, and at no time did the prosecutorial burden, or an evidential burden, shift to the accused.

39. Thus, in circumstances where the chain of custody is not covered by way of presumption, it is necessary for the relevant member of An Garda Síochána to give evidence regarding the chain of custody and, if appropriate, to be cross-examined on same. DPP v. Walton (Unreported, High Court, Morris P, ex tempore, 13 July 1998), concerned an appeal by way of case stated to the High Court where the District Court had dismissed a prosecution under the Road Traffic Act 1994 (which contained similar statutory presumptions to those now under consideration) in

Page | 15 circumstances where one member of An Garda Síochána had obtained a sample from an accused and a different member had forwarded the sample to the Bureau, and the prosecution failed to call evidence from the member who forwarded the sample. Morris P held that the forwarding of a sample to the Bureau by a different member of an Garda Síochána than the member who was present for the taking of the sample was covered by, or had the benefit of, the relevant presumption, and thus the evidence of the Garda who forwarded the sample was not required (and evidence as to what that Garda did was not hearsay) but Morris P also stated that “[i]n a case without the benefit of the presumption … this [that the evidence of the Garda who forwarded the sample was hearsay] could be a perfectly valid point”.

It appears that Morris P did not give a written judgment in this case but the Court was furnished with a note recorded by the Office of the DPP at the time. Further, the ex tempore judgment of Morris P has been cited in Staunton, Drunken Driving, 2nd Ed., (Round Hall, 2021) at §6.127 and in Daly, Drink and Drug Driving in Ireland (Lonsdale Law Publishing, 2023) at §5.44.

40. Applying Walton to the present case, there was no presumption that the integrity of the specimen remained intact and thus, the State did not have “the benefit of the presumption” and chain of custody evidence ought to have been adduced in the District Court. It follows then that there was no evidential burden on the accused where the presumption did not apply and thus, there was no necessity for the accused to engage with the evidence, as contended for by the respondent. It was not for the accused to cross-examine the Garda and thus fill the gaps in the prosecution’s evidence.

41. Further, and in line with the decision of McKechnie J in AMcD, and insofar as the prosecution could not avail of a presumption in the circumstances of this case, then the prosecution should have accounted for the history of the specimen, or the chain of custody, so as to exclude the possibility of interference. Clearly, the preservation of the integrity of the specimen between the completion of the s.15 form by the designated doctor (or nurse, as the case may be) and receipt of the specimen by the Bureau is of paramount importance to the credibility of the subsequent analysis and consequent prosecution under the RTA 2010 and, in this regard, the Court notes that Staunton, Drunken Driving, records in the footnote to §6.126 that “[t]here

Page | 16 have been reported instances of suspected interference with specimens. Cf. B.

McDonald, “Hung jury in post office tampering case”, Irish Times, 6 December 2013, p.6.”

42. That is not to say that the s.15 form is not of evidential value. Of course it is, but only to the extent provided for by reason of s.15 and s.20 of the RTA 2010. In the words of O’Malley J in Power, “the certificate covers the admissibility of its own contents” but no more. The certificate cannot plug gaps in ease of the prosecution in the manner contended for by the respondent, if the presumptions do not, in fact, cover such gaps in the first place.

43. As noted above, the integrity of the specimen is of paramount importance, and this is all the more so where there is no obligation on the Garda to cause the specimen to be forwarded “as soon as possible” (per Costello J in Hobbs v. Hurley (Unreported, High Court, Costello J, 10 June 1980) where the Court observed that “as soon as practicable” was not synonymous with “as soon as possible” and had “as soon as possible” been used, it would have imposed a more severe obligation on the Bureau) and an interregnum between the taking of the sample and the forwarding of the sample is envisaged by the legislation. A similar conclusion as regards the phrase “as soon as practicable” was reached by Finlay P in DPP v.

Corrigan [1980] ILRM 145, albeit that both Hobbs and Corrigan, whilst dealing with a virtually identical presumption to the present case, concerned a delay by the Bureau in analysing a specimen forwarded to it.

44. Relying on Corrigan, counsel for the respondent argued that the onus was on the accused to discharge the evidential burden and this onus was not addressed in any way by the accused during the course of the trial. That being so, the certificate evidence, based upon the statutory steps being complied with, was sufficient and chain of custody evidence was not required. Or, put another way, the District Court had no evidence before it that ‘shifted the dial’ or introduced a doubt such that the application for a direction should have been successful and the District Court Judge was correct in the findings – of fact and law – as made by her.

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45. Counsel for the respondent also submitted that there was nothing giving rise to any suspicion of a labelling error or tampering noted by the Bureau in the s.17 certificate which certified the analysis and this was a matter remarked upon by the District Court Judge in her ruling. The presumption covered the seal and there was a significant amount of material pointing to the specimen being the one and same specimen taken from the applicant at 00:37 on 21 August 2022 and thus it was not a case to which AMcD applied.

46. Interestingly, Staunton, Drunken Driving, notes from §6-122 to §6-124 “Under s.15(4)... it is presumed, until the contrary is shown, that a designated doctor or nurse sealed the containers. While the prosecution benefits from a statutory presumption regarding the seal on the container, it remains to be seen if that relieves the prosecution of the obligation to account for the custody of the specimen up and until same is analysed by the Bureau. The chain of custody is a matter expressly referred to by the Bureau on its website where it is, inter alia, noted:

“The chain of custody is a process which ensures that the integrity of a specimen is verifiable from specimen provision to analysis. The red seal on the container is part of the chain of custody. If the seal is disturbed the chain of custody is deemed to have been broken.”

It is important to note that the Bureau refers to the “seal” as merely being “part” of the chain of custody.

(footnote: See the “FAQs” section of the Medical Bureau of Road Safety website: https://www.ucd.ie/mbrs/faqs [accessed January 2021])

In that sense, it is arguable that the process of gathering evidence and subjecting such evidence to forensic testing is no different to other areas of the criminal law and the general requirement to comply with the rules of evidence. Clearly, a specimen of blood or urine is a piece of “real evidence” which ultimately forms the basis of the certificate evidence relied on by prosecuting authorities.

Therefore, whether the presumption in s.15(4) absolves the prosecution of any obligation to account for such evidence in the normal way is not clear.”

(emphasis supplied)

before noting the comments of McKechnie in AMcD and the decision of Morris P in Walton. And it falls to this Court to clarify “whether the presumption in s.15(4)

absolves the prosecution of any obligation to account for” the chain of custody.

47. The respondent further argued that if there had been any doubt, Garda Houlihan ought to have been cross-examined on the contents of the certificate. In DPP v.

Page | 18 Croom-Carroll [1999] IESC 2; [1999] 4 IR 126 the name of the accused was recorded on the specimen bottle but not on the sealed container and the Supreme Court held that the “direct conflict between the form completed by the designated doctor under s.18 and the certificate issued by the Medical Bureau under s.19 is sufficient to defeat the statutory presumption of regularity and to call for an explanation from the prosecution in a criminal case.” Counsel for the respondent submitted that there had been ‘intense cross-examination’ in Croom-Carroll but in the present case, despite Garda Houlihan being available for cross-examination, the accused had not engaged with the evidence at all. However, for the reasons as expressed at §40 above, this Court is of the view that there was no obligation on the accused to engage with the evidence in the District Court.

48. In the foregoing analysis, the Court has borne in mind that the constitutional rights of the accused must be preserved and in order to so do, the Court must give the legislation (s.15 and s.20 of the RTA 2010 in this case) a strict interpretation. Thus, and whilst mindful of the recent decision of the Supreme Court in Donegal County Council v. Quinn & anor [2025] IESC 19, where that Court queried why the legislature would introduce a complication into an administrative process (see, for example, §3 of the judgment of Murray J), this Court cannot read a presumption into s.15 and/or s.20 of the RTA 2010 that is not expressly stated therein and, in the view of the Court, this is what the respondent has asked the Court to do in submitting that the seal was the presumption and that the seal ‘locked the door’ on the specimen until it was opened by the Bureau, unless the contrary was shown.

49. Whilst counsel for the applicant submitted that s.15 be construed in a literal sense and in the sense that was meant and intended for by the legislature, this Court notes the judgment of the Supreme Court in Heather Hill Management Company CLG & anor v. An Bord Pleanála & ors [2022] IESC 43; [2022] 2 ILRM 313 where, as regards statutory interpretation, Murray J noted at §113-§116 “First, “legislative intent” as used to describe the object of this interpretative exercise is a misnomer: a court cannot peer into minds of parliamentarians when they enacted legislation and as the decision of this court in Crilly v.

Farrington [2001] 3 I.R. 251; [2002] 1 I.L.R.M. 161 emphatically declares, their subjective intent is not relevant to construction. Even if that subjective intent could be ascertained and admitted, the purpose of individual

Page | 19 parliamentarians can never be reliably attributed to a collective assembly whose members may act with differing intentions and objects.

Second, and instead, what the court is concerned to do when interpreting a statute is to ascertain the legal effect attributed to the legislation by a set of rules and presumptions the common law (and latterly statute) has developed for that purpose (see DPP v Flanagan[1979] I.R. 265 at 282 per Henchy J.). This is why the proper application of the rules of statutory interpretation may produce a result which, in hindsight, some parliamentarians might plausibly say they never intended to bring about. That is the price of an approach which prefers the application of transparent, coherent and objectively ascertainable principles to the interpretation of legislation, to a situation in which judges construe an Act of the Oireachtas by reference to their individual assessments of what they think parliament ought sensibly to have wished to achieve by the legislation (see the comments of Finlay C.J. in McGrath v McDermott[1988] I.R. 258 at 276).

Third, and to that end, the words of a statute are given primacy within this framework as they are the best guide to the result the Oireachtas wanted to bring about. The importance of this proposition and the reason for it, cannot be overstated. Those words are the sole identifiable and legally admissible outward expression of its member’ objectives: the text of the legislation is the only source of information a court can be confident all members of parliament have access to and have in their minds when a statute is passed. In deciding what legal effect is to be given to those words their plain meaning is a good point of departure, as it is to be assumed that it reflects what the legislators themselves understood when they decided to approve it.

Fourth, and at the same time, the Oireachtas usually enacts a composite statute, not a collection of disassociated provisions, and it does so in a preexisting context and for a purpose. The best guide to that purpose, for this very reason, is the language of the statute read as a whole, but sometimes that necessarily falls to be understood and informed by reliable and identifiable background information of the kind described by McKechnie J. in Brown. However - and in resolving this appeal this is the key and critical point - the “context” that is deployed to that end and “purpose” so identified must be clear and specific and, where wielded to displace the apparently clear language of a provision, must be decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.”

50. That being so, this Court cannot presume that which the legislature intended, but it has been long accepted that there is a rule of strict construction or interpretation of a penal statute, as articulated in Inspector of Taxes v. Kiernan [1981] IR 117, wherein Henchy J stated at p.122 that

Page | 20 “if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language”.

51. And more recently, and whilst neither party referred to the decision of the Supreme Court in DPP v. Avadenei [2017] IESC 77; [2018] 3 IR 215, it was held in Avadenei that a strict construction of a penal statute was accepted as an unencroachable rule of statutory interpretation. At §86 of her decision, O’Malley J held that strict construction meant that “the court must consider whether there has been observance of the purposes and objects of the legislation, and whether it has been proved that everything that should have been done has been done.”

52. The issue in Avadenei was whether this approach meant that the identification of a particular defect (in Avadenei, with reference to a statutory form under the RTA 2010), had the consequence of invalidating the prosecution evidence. At §91 of her judgment, O’Malley J distilled the relevant authorities, and held that in principle a flaw in the implementation of the statutory procedures would invalidate the evidence produced under the statutory regime if;

“ … (iv) the power is erroneously exercised, or procedures are erroneously followed, in such a fashion that the evidence proffered as a result does not in fact prove what it was intended to prove.”

and it seems to this Court that this test may also apply to the present case where the evidence proffered did not prove the integrity of the specimen.

53. In approaching the issue in this way, the Court is also mindful of the decision of Bolger J in McGuinness v. DPP [2024] IEHC 317, in which the Court granted an order of certiorari in respect of a decision of the Circuit Court (on appeal from the District Court). In the course of her judgment, Bolger J noted at §9 that decisions in which the Courts have held that the interests of justice require common sense to be applied to evidence (for example, DPP v. Ó Súilleabháin [1995 2 ILRM 617] and DPP v. Higgins [2017] IECA 55), cannot be applied to a penal provision that requires strict construction.

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54. Arising from the foregoing discussion, the Court is of the view that the applicant must succeed on his submission that the s.15(4) presumption does not extend to absolving the prosecution of their obligation to account for the ‘custody’ of the specimen in accordance with the normal rules of evidence and, absent chain of custody evidence, the prosecution must fail.

Is judicial review an appropriate remedy?

55. It cannot be gainsaid that, in appropriate circumstances, judicial review is available to challenge the legality of decisions of the District Court or the Circuit Court.

However, depending upon the particular circumstances, judicial review is not always the correct remedy (see, for example, ER v. DPP [2019] IESC 86, wherein Charleton J noted at §17 that judicial review was not about the correctness of the

decision-making or a reanalysis of the case by the reviewing court, but rather it was about process, jurisdiction and adherence to a basic level of sound procedures) and certainly, where the merits of a District Court decision are concerned, an appeal to the Circuit Court is the most appropriate remedy.

56. However, the applicant’s submission was that in circumstances where the prosecution did not lead evidence as to the chain of custody in the District Court, an appeal de novo before the Circuit Court would have permitted the prosecution to ‘mend its hand’ and such course of action was not appropriate. Whilst this submission was not accepted by the respondent, the respondent’s primary position was that judicial review was not the appropriate forum by which to pursue any grievance that the applicant had with his conviction in the District Court and that the applicant had another alternative remedy available to him, being an appeal by way of case stated to the High Court on a point of law (“an appeal by way of case stated”).

57. Albeit not referred to by the parties in oral or written submissions, the concept of the prosecution being permitted to ‘mend its hand’ was considered by Henchy J in People (Attorney General) v. Griffin [1974] IR 416, a case concerning a Circuit Court conviction under the Dangerous Drugs Act 1934, followed by a successful

Page | 22 appeal in the Court of Criminal Appeal – with a retrial directed – and ultimately, the Supreme Court dealing with the question of whether a retrial was appropriate in circumstances where the prosecution had failed to put in certain matters at the first instance hearing. The view of Henchy J, stated at p.420, and which this Court respectfully adopts was that “when a conviction in [sic] quashed because the prosecution failed to tender the evidence necessary to sustain a conviction, the accused should not be subjected to the worry of a retrial in which the prosecution could mend its hand, unless there is clear statutory authority for such a course.”

58. In the present case, the applicant was entitled to a hearing in the District Court that was bounded by the principles of natural and constitutional justice and, as discussed above, it was not for the applicant to cross-examine Garda Houlihan on matters which were for the prosecution to prove, being the chain of custody in this particular case. In other words, the burden of proof was on the prosecution, it did not discharge the burden of proof as regards the chain of custody and it should not be allowed to have a ‘second bite at the cherry’, so to speak, by way of an appeal de novo before the Circuit Court.

59. That said, there remains the question as to whether the availability of an appeal by way of case stated was the more appropriate course of action and, if so, whether the applicant should be ‘penalised’ for bringing this application by way of judicial review? Given that the issue to be decided by this Court was primarily one of legal analysis, the issue might well have been appropriate for an appeal by way of case stated, particularly when such appeal would have preserved the evidential status quo as was before the District Court and there would have been no opportunity for the prosecution to ‘mend its hand’.

60. However, that is not the end of the matter and whilst judicial review should not routinely be used if there are alternative remedies available, the decision of the Court of Appeal in Tallon v. DPP [2023] IECA 125 is illustrative of circumstances in which an application for judicial review was successful, despite an alternative remedy being available (as in the present case, an appeal to the Circuit Court).

Tallon was concerned with the making of a civil order by the District Court

Page | 23 pursuant to the provisions of s.115 of the Criminal Justice Act 2006 (being an order prohibiting the applicant from behaving in a certain way) and consequent upon same, and having allegedly not complied with the civil order, the applicant was convicted of inter alia two offences pursuant to the provisions of s.117 of the Criminal Justice Act 2006. The applicant was successful in his judicial review application and the High Court quashed the orders/convictions. The decision of the High Court was appealed by the DPP, but the appeal was dismissed, with Donnelly J for the Court of Appeal, stating at §73-§74 of her judgment “The State strongly criticise the trial judge for dealing with the case on the basis of whether it was “questionable” that the Circuit Court appeal would not be an adequate remedy.

While the use of the word “questionable” is not the best choice of words in the context of assessing whether the alternative remedy was inadequate, I consider that the judge was using it to demonstrate that in the totality of the case, taking into consideration the issues raised, including the constitutional challenge to the legislation, she was not satisfied that that there was an alternative adequate remedy. It is not insignificant that having said this, she immediately noted that, the time for an appeal had lapsed by the time of Mr. Tallon’s arrest on 7 October 2020. As I will address further below, even if there had been an appeal of the civil order at that stage, it could not have assisted him. He was, however, still within the time set out in O. 84 RSC to bring this judicial review challenge to the civil order.”

61. Whilst not ‘on all fours’ with the decision in Tallon (and noting that there was no constitutional challenge to the legislation in the present case), and whilst an appeal by way of case stated was an adequate alternative remedy, the totality of this case and the broad application of the outcome of the challenge means, in my view, that an application by way judicial review was not inappropriate.

62. Or to look at matters another way, where the legality of the process in the District Court was at issue, and the accused was entitled to a fair trial at first instance (or, per the decision of McKechnie J in Sweeney v. District Judge Fahy [2014] IESC 50, the accused was entitled to a trial that was not fundamentally flawed), this Court is not of the view that an application for an order of certiorari by way of judicial review did not lie. It is long established that the purpose of judicial review is to inter alia ensure the legality of the process and in bringing the application by way of judicial review, this is exactly what the applicant was asking this Court to do.

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63. The application for a direction was refused by the District Court Judge on the grounds set out at §11 above. The presumptions contained at s.15(4) of the RTA 2010 and s.20(2) have been considered in detail at §26 above, but given the District Court’s reliance on the fact that “when eventually the certificate comes out, there are various presumptions that [the specimens] weren’t interfered with”, the Court must also look to the presumptions contained at s.17(4) and s.20(3) of the RTA 2010, and the s.17 certificate.

64. There is no presumption as contended for by the District Court Judge (i.e., that the specimens were not interfered with) contained in either s.17 or s.20 of the RTA 2010 and neither does the s.17 certificate purport to confirm that the specimen was not interfered with. In like manner as s.15(4), s.17(4) states that “it shall be presumed until the contrary is shown that subsections (1) to (3) have been complied with” and subsections (1) to (3) simply provide for:

- analysis of the specimen (or one of the specimens, if two specimens are received in circumstances where a specimen is not retained by the person from whom the specimens were taken);

- determination of the concentration of alcohol in the specimen;

- forwarding of the s.17 certificate to the Garda Station and a copy thereof to the person from whom the specimens were taken;

but nowhere is there provision for any indication that the Bureau analyst checked that the seal was intact or that the specimen/s were not interfered with and a consequent presumption to that effect.

65. And s.20(3) simply provides that:

“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 Act 1961 to 2023 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.”

but again there is no provision for any indication that the seal was intact or that the specimen/s were not interfered with and a consequent presumption to that effect,

Page | 25 and neither does Chapter 4 of the RTA 2010 impose any requirements in this regard.

66. In State (Cork County Council) v. Fawsitt (Unreported, High Court, McMahon J,

13 March 1981), the Court concluded that a court or tribunal exceeded its jurisdiction if it addressed itself to the wrong question, and in a subsequent case involving the same parties, State (Cork County Council) v. Fawsitt (Unreported, High Court, Gannon J, 18 December 1981), the Court held at p.10 that the decision under challenge in that case was “based on a mistake of law in the interpretation of the Statute upon which the jurisdiction of the Circuit Judge depended. In holding that the County Council had failed to show that entry was necessary because the Judge was not satisfied that the lands were not manifestly unsuitable the right of the County Council to obtain an order under section 271 was made subject to a condition of negativing manifest unsuitability which is not warranted by the section. The error is more than a mere error in interpretation. As a result of the mistake of law in the interpretation of the Statute by which jurisdiction is conferred the Judge stepped outside his jurisdiction.”

And the Supreme Court, upon appeal in the same case State (Cork County Council) v. Fawsitt (Unreported, Supreme Court, 27 July 1983), upheld the

decision of Gannon J, with Henchy J noting at p.3 that “in deciding the appeals by thus answering the wrong question the Judge stepped out of jurisdiction, for the proceedings gave him no jurisdiction to answer that question.”

67. In Bowes v. HH Judge Devally & anor [1995] 1 IR 315, the applicant challenged an order purported to have been made under s.30 of the Misuse of Drugs Act 1977, which authorised the forfeiture of anything shown to the satisfaction of the Court to relate to the offence. Geoghegan J granted certiorari as the forfeited item (i.e., money) had no relevance to the actual offence for which the applicant was convicted and the Court held that in misconstruing the statute, the respondent had gone beyond his jurisdiction. On the necessity of strict construction of statute in a penal context, Geoghegan J noted at p.319 that, “[w]hat clearly emerges is that the forfeiture is part of the penalty and the circumstances in which a forfeiture can be made must therefore be strictly construed. By the clear wording of the section, the property must be related to

Page | 26 the particular offence and there was no evidence in this case which would warrant a court being satisfied as to the connection. I am therefore satisfied that the forfeiture order was made without jurisdiction, the statutory precondition not having been fulfilled.”

68. In the present case, this Court is of the view – relying in part on Bowes and Fawsitt

– that in misconstruing the applicable presumptions, the District Court Judge went beyond her jurisdiction and fell into an error in excess of jurisdiction, such that an application for judicial review was warranted and appropriate in the circumstances.

69. A similar approach was also adopted by Bolger J in McGuinness, where the Court noted at §12 that “Judicial review must lie to correct an error of this type, similar to the error at issue in the decision of the court in Cork County Council v. Shackleton [2011]

1 IR 443, where Clarke J. held at paras. 109 and 112 of his decision:

“[109] It seems to me to follow that, where there has been a significant error in the interpretation of a material statutory provision leading to a decision of the property arbitrator being wrong in law, any such decision should, prima facie, be quashed.

… [112] It should also be noted that the overall approach mandated by s. 96 is, in my view, a fundamental legal question. An error, if an understand-able one, in adopting an inaccurate construction of the section is, therefore, in my view a sufficiently fundamental matter which should lead to the quashing of the arbitrator's determination.”

70. However, and if I am incorrect in holding that the District Court Judge went beyond her jurisdiction, and the error on the part of the District Court Judge was within jurisdiction (noting per McKechnie J in Stephens v. Connellan [2001] IEHC 221;

[2002] 4 IR 321 at §58 that “there remains a wide divergence of judicial views as to what correctly should be described as an error made within jurisdiction as distinct from an error made in excess of jurisdiction”), I remain of the view as expressed at §61 above – that the issue to be addressed in this case is of such fundamental importance, applying as it does to all prosecutions in the District Court which rely upon the s.15 presumption – that judicial review was an appropriate medium through which the issue could be addressed.

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Conclusion

71. The Court is thus satisfied that the statutory presumptions as provided for at s.15(4), s.17(4) and s.20(2) of the RTA 2010 cannot assist the respondent where chain of custody evidence was not led in the District Court – and the certificate evidence cannot plug the gap – and an application for judicial review was appropriate in the circumstances. That being so, the applicant is entitled to an order of certiorari quashing the order of the District Court made on 10 January 2024.

72. I will hear the parties further on the question of whether a remittal to the District Court is necessary, or appropriate, in the circumstances. These judicial review proceedings will be listed, for mention only, for 10:30 on Thursday 09 October 2025 for such purpose and for the purpose of giving directions as to the exchange of written legal submissions regarding remittal, if required.

73. In circumstances where the Court has identified an inconsistency between the extent of the presumption and its application in the present case, it is a matter for the State (in the prosecution of drunk driving cases) or for the Oireachtas, as the sole and exclusive law maker in the State, as to the manner in which this inconsistency is addressed, given that this judgment is likely to be of wider application than simply the present case. That being so, this judgment will not take effect until the perfection of the orders consequent upon the judgment.

Costs

74. Pursuant to the provisions of s.169 of the Legal Services Regulation Act 2015, costs should follow the event “unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties”. In circumstances where the applicant has succeeded in his application, and there is nothing of note concerning the particular nature and circumstances of the case, or the conduct of the proceedings by the parties, the Court is inclined to award the applicant the costs of the proceedings.

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75. However, it is open to the parties to contend for the making of a different form of costs order and, following a determination on the question of remittal to the District Court (as referred to at §72 above), I will hear the parties in relation to the precise form of costs order to be made.

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