Supreme Court dismisses appeal; 7-minute delay in breath test not unreasonable without malicious intent.

[2008] IESC 45

THE SUPREME COURT

328/05

Murray C.J.

Denham J.

Hardiman J.

Between

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CHERYL KELLY)

PROSECUTOR/Appellant

AND

ROBIN FOX

DEFENDANT/RESPONDENT

JUDGMENT of Murray C.J. delivered on the 22nd day of July 2008

1. This is an appeal by the D.P.P. by way of Case Stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51

of the Courts (Supplemental Provisions) Act 1951 against a decision of the District Court to dismiss the prosecution brought by way of

summons against the defendant in that Court for the offence of being in charge of a vehicle when the concentration of alcohol in his

breath exceeded the statutory limit contrary to s. 50(4) and (6)(a) of the Road Traffic Act 1961, as inserted by s. 11 of the Road

Traffic Act 1994 as amended by the Road Traffic Act 1995.

Facts of the Case

2. The facts established by the evidence tendered on behalf of the prosecutor in the District Court are set out in the case stated.

These facts are not in issue. They are set out in the following terms in the case stated:

“The accused first appeared in the District Court on 14th June 2002. It was next listed for the 13th January 2003. The

case was ultimately heard on the 1st September 2003.

3. Garda Cheryl Kelly gave evidence that at 2.30 a.m. on 4th June 2002 she was on patrol with Garda Francis Gormley. As they drove

down Burlington Road, Dublin 4 she observed a silver Mercedes convertible, registration 00.D 56339, parked up on the footpath. As

she drove by she observed the driver of the vehicle slumped over the wheel. On approaching the car she noticed that the engine was

running. She gave evidence that having spoken to the driver, who gave his name as Robbie Fox, 12 Eagle Valley, Powerscourt, Co.

Wicklow, she got a strong smell of intoxicating liquor and his speech was slurred. At 2.35 a.m. Garda Kelly arrested the accused for an

offence under s. 50(1), (2), (3) or (4) of the Road Traffic Act 1961/94. She explained to the accused in simple English that she was

arresting him for being drunk in charge. The accused was cautioned and conveyed to Pearse Street Garda Station arriving there at

2.40 a.m. He was introduced to the member in charge, Garda McTague, and the custody record was completed and the accused was

handed a copy of form C72. In the presence of Garda Kelly, Garda McTague explained the accused’s rights to him and the accused

acknowledged receipt of form C72 by signing for it. Garda Kelly introduced the accused to Garda Hardiman at 2.50 a.m. and

accompanied them to the breath analysis testing room at 3.15 a.m. Garda Kelly was present when the accused provided two samples

of his breath to Garda Hardiman. At 3.35 a.m. he returned to the foyer with the accused who was put into a cell. At 4 a.m. the

accused was brought back to the foyer area. At 4.45 a.m. the accused was charged by Sgt. Finbar Murphy in Garda Kelly’s presence.

4. Garda Ger Hardiman gave evidence that at 2.50 a.m. he was introduced to the accused by Garda Kelly as a person having been

arrested under s. 50(10) of the Road Traffic Act 1994. He formed the opinion that the accused had been drinking as there was a smell

of alcohol from him and he was slurring his words. He then gave evidence he had been trained in the use of the Lion Intoxilyzer and

provided with a manual and that it was necessary to observe the accused for a period of 20 minutes as per the recommendations in

order to ensure that the accused took nil by mouth and he said he did so observe the accused who took nil by mouth. He gave

evidence that at 3.17 a.m. he brought the accused to the doctor’s room accompanied by Garda Kelly and made the lawful requirement

of the accused to provide two specimens of breath. The accused indicated that he understood. Garda Hardiman then gave evidence

in relation to the intoxilyser procedure performed on the accused at Pearse Street Garda Station and gave evidence that the result

was 66 microgrammes per 100 millilitres of breath. The two samples were taken at 3.24 a.m. and 3.26 a.m. respectively.

5. Under cross examination Garda Hardiman conceded that he had actually detained the accused for observation for a period of 27

minutes and gave no evidence as to why he observed him for 27 rather than 20 minutes.”

The Issue in the District Court

6. At the conclusion of the prosecution evidence Counsel for the defendant submitted that the defendant had been observed by

Garda Hardiman for a period of 27 minutes and that neither Garda Kelly nor Garda Hardiman offered in evidence any explanation as to

why the accused was observed for a period longer than the period of 20 minutes which is the minimum period which must be allowed

to pass in order to ensure that a reliable breath test can be taken.

7. The reason for this 20 minute period was explained in evidence by Garda Hardiman. It was accepted on behalf of the defendant

that the detention during the period of 20 minutes was a lawful one. However it was submitted that the additional period of 7 minutes

which the defendant had to wait before the breath sample was taken had not been justified by any explanation or excuse as a result

of which his detention at the time when his breath sample was taken must be considered to be unlawful.

8. On this basis, it was submitted, the specimen of breath and the results that flowed from that sample were inadmissible in evidence.

On behalf of the prosecutor it is submitted that the period of observation extending beyond the 20 minutes could only serve to the

benefit of the accused and was not to his prejudice but, according to the case stated, no explanation as to what benefit would

accrue was given. The prosecution also submitted if it were, for example, the case that there was a queue for a number of people

waiting to be breathalysed by the intoxilyzer or, if it were a situation where a blood sample was to be given, a period of detention

may extend well beyond the established period of 20 minutes. There was no evidence concerning the reason for the 7 minute delay.

9. The Judge of the District Court concluded that she would have no difficulty accepting that there could be an explanation justifying

a period of detention outside the 20 minutes but in this case there was no evidence explaining the further delay. Although the period

of 20 minutes had been justified, in the absence of a justification for the further 7 minutes, the District Court Judge concluded that

the detention at the time when the breath sample was taken was unlawful and ruled the evidence of the results of same inadmissible.

Accordingly the summons was dismissed.

10. The prosecutor being dissatisfied with the determination of the District Court in this case the District Court Judge stated a case,

by way of appeal, on the following question:

“Was I correct in law in dismissing the charge by reason of the fact the accused had been deliberately detained by the

Gardai for observation for a period of 27 minutes and as no evidence was given to explain or justify the 27 minute period

of observation during the detention the detention was unlawful, the evidence relating to the intoxilyzer inadmissible.”

11. The appeal by way of case stated was heard by the High Court and in an ex tempore judgment the High Court answered the

question posed in the affirmative. It is from that decision that the appellant has appealed to this Court.

Decision

12. First of all I think certain basic parameters concerning this case should be set out. All parties are agreed that the reference in the

question to 27 minutes should really be a reference to 7 minutes since there is no issue concerning the lawfulness of the detention of

the first 20 minutes.

13. Thus this case concerns a period of 7 minutes of the total period during which the defendant was detained in the Garda Station,

namely, 2 hours and five minutes from 2.40 a.m., the time of his arrival to 4.45 a.m. the time that he was charged. How long after

that he was actually released is not stated.

14. One of the Garda witnesses, a Garda Hardiman, gave evidence that he had been introduced to the defendant at 2.50 a.m. and

that it was necessary to observe him for a period of 20 minutes in according with established practice in order to verify that the

defendant did not take anything in his mouth during such a period preceding a test for the purpose of ensuring a reliable breath test.

(Paragraph 4 of the case stated). The District Court Judge was quite satisfied, and no issue arose, as to the lawfulness of the arrest

and detention of the defendant in the Garda Station up to that point. Thus there was no question here of any unlawful arrest or any

frailty in the initial basis for the detention of the defendant.

15. As also appears from the case stated the respondent in this appeal was arrested pursuant to s. 50(10) of the Road Traffic Act 19

as inserted by s. 11 of the Road Traffic Act 1994. That provides that a member of An Garda Siochana may arrest without warrant a

person who, in the member’s opinion is committing or has committed an offence under s. 50. This includes the offence of being in

charge of a motor vehicle having consumed an excessive quantity of alcohol as referred to at the outset of this judgment. Pursuant

to the relevant statutory provisions a person so arrested must be brought to a Garda Station and he or she may be required to

undergo certain procedures with a view to ascertaining the concentration of alcohol in his or her blood. In this instance the

respondent was required to provide a specimen of his breath by means of an intoxilyzer. It is important to bear in mind that there is

no statutory time limit within which such a procedure must be completed. This, of course, does not absolve the authorities from

dealing with persons who have been lawfully arrested so as to avoid, in the circumstances of a case, unreasonable delay in their

ultimate release or being brought before a Court as the case may be.

16. In D.P.P. –v- Finn [2003] 1 IR 372 this Court had occasion to consider the lawfulness of a practice adopted by the Gardai in cases

of this nature where there is built into the procedure for a breath test by means of an intoxilyzer the waiting and observation period

of 20 minutes referred to above.

17. In the course of the judgment which I gave in that case I reviewed some of the leading cases of this Court on the duty of the

Gardai to deal with an arrested person within a reasonable time. I referred to The People –v- Walsh [1980] IR 294 and in particular

Dunne –v- Clinton [1930] IR 366, this latter case having been frequently described by this Court as a definitive statement of the law

in this area.

18. I do not think that it is necessary in the present case to review that case-law in detail again but I would refer to a conclusion

which I came to in the Finn case where the judgment states

“Although the defendant in the present proceedings was not arrested on a criminal charge for the purpose of being

brought before a Court he was arrested and deprived of his liberty for a purpose authorised by statute, namely the taking

of specimens of his breath for analysis in connection with a possible offence of driving a vehicle while he had an excessive

amount of alcohol in his blood. In my view, the principles set out in Dunne –v- Clinton [1930] IR 366 and applied in The

People –v- Walsh [1980] IR 294 govern the duty of the arresting Gardai in this case who are under a duty to take

appropriate steps to make the statutory requirements of the defendant to provide specimens of his breath “with

reasonable expedition”, within a “reasonable time” or without “unreasonable delay” adopting the language used by Hanna

J. in Dunne –v- Clinton. Whether there was unreasonable delay would fall to be considered having regard to all the

circumstances of the case. Central to this must be the actual duration of the delay.”

19. Then follows the passage relied upon by the D.P.P. in his submissions in this case where it is stated:

“In criminal proceedings the onus is on the prosecution to establish beyond reasonable doubt that a defendant, while held

in custody, has at all times been so held in accordance with law. But not every delay is unreasonable and if it is not

unreasonable it does not require to be objectively justified. Once it has been established by the prosecution that a

defendant has been lawfully arrested and detained, the question as to whether that lawful detention has been rendered

unlawful by unreasonable delay in dealing with a defendant is, in the first instance, a matter for the trial judge to

determine having regard to the circumstances of the case. Generally speaking, I would be very much disinclined to

consider that a delay of 20 minutes simpliciter in dealing with an arrested person is the kind of delay which could be

treated as rendering an otherwise lawful custody, unlawful, at least in the absence of other special circumstances”.

20. Indeed in this case the case stated discloses that the respondent was brought to the testing room at 3.15 a.m., provided two

samples of his breath and at 3.35 a.m. he returned to the foyer in the company of a Garda member and was put in a cell. At 4 a.m.

the accused was brought back to the foyer area. At 4.45 a.m. he was charged with the offence in question. No issue was raised

concerning the time span between these successive events and to my mind properly so. Counsel for the respondent correctly pointed

out that no admissibility of evidence turned on whether any of these steps involved a delay which rendered the detention unlawful

although adopting the approach followed by the respondent in this case, at least theoretically, the lawfulness of his detention at the

time of charge might arise. On the other hand the reality seems to me that these time spans are perfectly reasonable from any

common sense point of view and are not so unreasonable on their face as to give rise to a question as to the lawfulness of the

detention. The detention and processing of persons arrested must be done, as a matter of law, with reasonable expedition or without

unreasonable delay.

21. As Hanna J. observed in the Clinton case, at page 375 “Now, what is a reasonable time after arrest”? No hard and fast rule can be

laid out to cover every case. The answer to that question must also be approached in a common sense and practical way. It is not

that an arrested person has to be dealt with as expeditiously as at all possible but that he or she is dealt with without the kind of

unreasonable delay that would render an otherwise lawful custody unlawful. Otherwise it seems to me that the Courts could become

involved in a time and motion study of every move in dealing with an arrested person often in a busy Garda Station at night.

22. Again as I pointed out in the Finn case in dealing with this aspect of the matter “In Dunne –v- Clinton the delay was the best part

of two days during which the Dunne brothers were held in a Garda Station without being brought before a peace commissioner or a

Court. In The People –v- Walsh The appellant was arrested at 9.30 p.m. on Thursday 23rd January 1975 and not brought before the

District Court until Saturday 25th January 1975. As can be seen neither of them involved a delay as short as 20 minutes.”

23. In short, so far as delay is concerned in dealing with an arrested person in my view the well established criteria in those two

cases are the criteria to be applied. Neither of them involved a delay of a short period.

The Difference with the Finn Case

24. What occurred in the Finn case was not regarded or treated by the Court as simply a question of delay in the handling of a person

in custody. As Hardiman J. stated in his judgment (at 386)

“This is not a case of delay simpliciter. It is a case in which a Garda having custody of the defendant deliberately decided

to wait for a particular fixed period before making the statutory requirement which was the purpose of the detention. He

did this he said on the basis of “guidelines” given to An Garda Siochana.”

25. He went on to state:

“This case accordingly does not raise such questions as to whether every interval elapsing before some statutory purpose

of detention is achieved requires positive justification or whether some intervals are so short as not to cause for positive

justification even when challenged. I will reserve my position on that issue until it arises in an individual case.”

26. As Hardiman J. pointed out the decision to require the defendant in that case to sit in a room for a period of 20 minutes by a

Garda member was “because he had been told or advised to do so in “Guidelines”.”

27. In my judgment in that case I said

“I have come to the view that what was involved here was something which goes beyond delay as such in dealing with

the defendant after he was brought to the Garda Station and the issue goes beyond simply whether any delay was

reasonable or unreasonable.”

28. That was because the practice being adopted by the Gardai involved “the introduction of a discrete and defined minimum period

of detention, for forensic purposes to be observed as a matter of practice in every case in which a person is arrested with a view to

requiring him or her to provide a specimen of breath. This was not so much delay as the observance of a pre-established practice

according to which there is inserted a discrete period of detention between the arrival of the arrested person at the Garda Station

and the taking of the sample. It is a prescribed and conscious prolongation of an arrested person’s period of detention in all such

cases. In my view, these factors which I have mentioned differentiate this case clearly from cases in which, for one reason or

another, an issue arises as to whether there has been unreasonable delay in dealing with an arrested person.”

29. Both parties also refer to the case of D.P.P. –v- McNeice [2003] 2 IR 614. In that case I relied in my judgment (nem diss) on the

two judgments in the Finn case in pointing out that what was involved as regards the 20 minute period was that arrested persons

were “as a matter of practice according to Garda guidelines kept under observation while in custody for a minimum period of 20

minutes”

30. Both judgments in the Finn case made it clear that the decision was based on the particular facts of the case.

31. The particular feature of the issue which arose on the facts in the Finn case was that the 20 minute period was a pre-ordained or

prescribed minimum period during which a person’s detention was to be systematically prolonged in every case for the purpose of

which we now know but of which there was no evidence in that case. In other words the 20 minute minimum period involved a

systematic period of detention of a defendant as part of the process of requiring him to provide a specimen of breath. This he was

bound to provide by law. The systematic nature of the 20 minute period of detention derives from the fact that it is required to be

imposed in every case in which an arrested person is required to provide a breath test by means of an intoxilyzer by virtue of

guidelines officially issued to the Gardai. In the circumstances of that case, because the detention period was systematic rather than

a discrete case of simple delay, that period required objective justification.

This Case

32. What happened in this case was that the extra period of 7 minutes during which the respondent continued to be kept under

observation was not done as a matter of any systematic or prescribed period of prolongation of the detention. For whatever reason,

since no reason was given, the Garda member allowed this period to run on an extra 7 minutes beyond the period prescribed by the

guidelines. I do not think it is useful or necessary to speculate as to what the reason for this running of time in bringing the

respondent from the observation room to the room where the breath test is carried out – whether due to loss of concentration,

inattention to time or otherwise.

33. In my view what was involved here is simply a question of delay. Instead of moving on to the next stage of the process the Garda

member delayed doing so for 7 minutes. The respondent was in the Garda Station for a period of 2 hours and 5 minutes up to the

point of being charged. Part of the process took 27 minutes instead of 20 minutes. It might have taken 28 minutes or 22 minutes.

There are no statutory provisions laying down strict time limits which apply in this case. If there had been I would imagine that they

would have been rather broad time limits as they usually are which would provide for things to be done within a timeframe that

allowed for the ordinary everyday incidents of human delay of a routine or modest nature in the ordinary course of administration.

34. Counsel for the respondent laid some emphasis on the fact that the District Judge had referred in the question she posed to the

accused having been “deliberately detained by the Gardai for a period of 27 minutes”, which of course included the 7 minutes referred

to, without further elaboration. From the very beginning the arrest, detention and ultimate charge of the respondent was of course

deliberate and I cannot infer anything from the terms of the question which would alter my view that what happened here was simply

that instead of the respondent being brought as quickly as possible to have his breath tested there was a delay of 7 minutes.

35. The question is was the period of delay in this case so unreasonable as to warrant an otherwise lawful custody to be deemed

unlawful in the absence of any objective explanation for it.

36. Absent any special circumstances such as evident malicious intent or purpose I cannot consider from any other point of view that

the delay of 7 minutes was one which on the face of it was so unreasonable as to render the detention unlawful.

37. That conclusion is the basis on which I would answer the question of law posed by the District Court Judge in her case stated.

38. Accordingly, in allowing the appeal by way of case stated, I would answer the question posed in the negative.