In the Matter of Section 2 of the Summary Jurisdiction Act 1857 as extended by Section 21 of the Courts (Supplemental Provisions) Act 1961.

Derek Brennan (applicant) v The Director of Public Prosecutions (respondent).

Road Traffic Road Traffic Act 1961 - Requirement to provide a sample - Consequences of failure to do so - Whether section must be invoked when consequences explained to accused - Road Traffic Act 1978 (section 13).

The Supreme Court (The Chief Justice Mr Justice Hamilton Mr Justice O'Flaherty, and Mrs Justice Den ham); judgment delivered 1 November 1995.

WHERE an accused person is arrested pursuant to section 49 of the Road Traffic Act 1961 and is informed of the requirement to provide a blood or urine sample under section 13 of the Road Traffic Act 1961 and the consequences of a failure to comply, there is no need for the Gardai to invoke the actual section when so informing the accused. Once a valid request had been made and complied with there is no encroachment on the accused's constitutional rights by reason of the fact that the actual section was not invoked.

The Supreme Court so held in refusing the appellant's appeal on a case stated.

Paul Gardiner BL for the appellant; Kevin Haugh SC and Adrienne Egan BL for the respondent.

MR JUSTICE O'FLAHERTY said that this was an appeal against a decision of Mr Justice Barr of 10 July 1995 arising on a case stated by the President of the District Court, Judge Smithwick, on 25 January 1995. The case stated recited that on 9 June 1994 the appellant appeared before the District Court to answer a complaint that he drove a mechanically propelled vehicle when he had consumed an excess of alcohol, contrary to section 49 of the Road Traffic Act 1961 as amended.

Garda Ambrose gave evidence in the District Court that on 28 October 1993 he saw the appellant driving a motor car at Merrion Square, Dublin, which driving he described as erratic. He was stopped and arrested and was informed that he was being arrested for breach of section 49 of the Road Traffic Act 1961. He was then brought to Pearse Street Garda Station, Dublin, and a doctor was called. It was explained to the appellant that he was required to permit the doctor to take a specimen of his blood or, at his option, to provide a specimen of his urine. Garda Ambrose further explained that a failure or refusal to comply with the requirements so made was itself an offence and that the penalty for same if convicted in the District Court was imprisonment for up to six months or a fine of up to £1,000 or both such imprisonment and fine.

A urine sample was duly provided by the appellant and Garda Ambrose gave evidence that there was compliance with section 21 of the Road Traffic Act 1978.

Mr Justice O'Flaherty said that it was clear that the Garda officer at no time explained to the appellant that this requirement wash being made under section 13 of the Road Traffic Act 1978 Act and a submission was made to Judge Smithwick that this was a fatal flaw in the prosecution case. The learned President stated that he was satisfied that the garda had quoted almost verbatim the wording of section 13, and had made it clear to him that failure to comply carried penal consequences, and in those circumstances held that the garda did not have to refer specifically to section 13. He was satisfied that the legislature never intended that the particular section would have to be quoted and that the point was a technical one. In his view, as long as the basic provisions of the section were outlined and that the accused was made aware of the basis on which he was being asked to provide a sample, then that was sufficient. The accused was convicted and a fine of £75 was imposed with a consequential disqualification for driving for a period of twelve months, with endorsement of his driving licence.

On a case stated to the High Court, Mr Justice Barr upheld this finding. He referred to section 13 and said that there were two elements to that section the requirement to give a specimen and a penalty for failure to comply with such requirement. This case did not concern the second aspect of the section as the appellant, having being told of the requirement and the possible penalty for refusing, did in fact provide a sample. In those circumstances Mr Justice Barr took the view that there was no strict requirement as a matter of proof to establish that the demand was made under section 13 and not under any other section.

Mr Justice O'Flaherty said that counsel for the appellant submitted that the appellant, as a suspect in custody, had a constitutional "night to silence" and that although the legislature were entitled to make inroads into that right, where they did so the courts must ensure that this is explained to the accused. It was submitted that since section 13 was not invoked there was a breach of the accused's constitutional right and the evidence should therefore be excluded.

It was further submitted that the failure of the garda to provide evidence that the requirement which he made was made pursuant to and under the authority of section 13 of the 1978 Act was fatal to the admissibility of the evidence obtained from the suspect.

Reliance was placed on two unreported decision of the Supreme Court, Director of Public Prosecutions v McGarrigle (22 June 1987) and Director of Public Prosecutions v Hand (10 November 1992). In McGarrigle the then Chief Justice Mr Justice Finlay, stated that in the case of a prosecution for failure to comply with section 13 of the 1978 Act it was essential that the actual section should be invoked in making such a requirement and, thereafter, that a failure to comply with the terms of the section could be relied upon as constituting the offence.

In DPP v Hand the accused was informed of the requirement to provide a sample and was informed that such a requirement was made pursuant to section 13. He was not informed of the penalty for refusing to comply. However he did comply and the court distinguished McGarrigle on the basis that in this case a perfectly valid request had been made to the accused, he was informed of the section under which it was made and if the specimen provided by him proved the offence against him then the case should be determined in accordance with that.

It was submitted that in each of these cases it was a requisite that the actual section should be invoked and counsel for the appellant referred, by analogy, to the situation where a person has been arrested and where it is a requirement that the relevant section should be invoked together with an outline of the offence on suspicion of which the arrest is made: see The People (DPP) v Quilligan [1986] IR 495.

Mr Justice O'Flaherty accepted the submission advanced on behalf of the Director of Public Prosecutions that the case of McGarrigle was clearly distinguishable. In the present case there was no question of non compliance with the terms of the section and further, this was the only section that had any application and relevance once the accused had been arrested under section 49, as amended, of the principal Act. Section 14 of the 1978 Act could have no application since it related to a different offence: namely that of being drunk in charge of a vehicle.

In all the circumstances Mr Justice O'Flaherty was satisfied that there had been no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and no policy purpose was served by requiring members of the Gardai to invoke the actual section on which the requirement was based. He distinguished the requirements for a valid arrest on the grounds that in those circumstances the deprivation of the accused's liberty was involved and, in general, it is necessary for the garda to invoke the operative section when making such an arrest. He therefore dismissed the appeal.

THE CHIEF JUSTICE and MRS JUSTICE DENHAM agreed with the judgment of Mr Justice O'Flaherty.

Solicitors: Frank Ward & Co (Dublin) for the appellant; Chief State Solicitor for the respondent.