Supreme Court dismisses appeal where judicial review of drug driving conviction is barred by available merits appeal.

THE SUPREME COURT

[Appeal No: 285/2009]

McKechnie J.

Clarke J.

Dunne J.

Between/

Michael Sweeney

Applicant/Appellant

and

District Judge Fahy

Respondent

and

The Director of Public Prosecutions

Notice Party/Respondent

Judgment of Mr. Justice Clarke delivered the 31st July, 2014.

1. Introduction

1.1 This case involves a challenge to a conviction for driving while under the influence of a drug. The case has a lengthy history. It

will be necessary to record at least some of that history so as to help identify the issues which remain for this Court to decide.

However, there is a sense in which each of the points now relied on on behalf of the applicant/appellant ("Mr. Sweeney") stem, at

least indirectly, from the fact that he was originally arrested on suspicion of drunk driving, received an initial certificate from the

Medical Bureau of Road Safety ("the Bureau") indicating that there was a zero concentration of alcohol found but subsequently (over

13 weeks after the alleged offence) received a second certificate which indicated the presence of "cocaine class".

1.2 When charged before the District Court, a number of points were made on Mr. Sweeney's behalf to which reference will need to

be made in due course. Having been convicted Mr. Sweeney sought to bring judicial review proceedings before the High Court. At

least to some extent, different points were made on that judicial review application to those which had been urged on the respondent

District Judge before whom Mr. Sweeney was tried. The High Court (O'Keeffe J.) dismissed the judicial review proceedings (Sweeney v

Judge Fahy [2009] IEHC 212). Mr. Sweeney has appealed to this Court against that dismissal. Not all of the points made before the

High Court were canvassed in the notice of appeal filed on his behalf.

1.3 As matters developed on the appeal, three points were relied on. First, it was said that Mr. Sweeney was entitled to consider

himself exonerated of the offence for which he had been arrested when he received a certificate showing no concentration of alcohol.

On that basis, he asserted before the High Court that he had discarded the second sample taken from him on the night of the alleged

offence (which sample was, in accordance with the statute, given to him) on the basis of his view that he would not be charged. It is

said that Mr. Sweeney was prejudiced in his defence by the fact that a second, and later, certificate, concerning the presence of

cocaine, was issued after that time. Second, it is said that the second certificate was, in any event, late and did not comply with the

statutory requirement that it be issued as soon as practicable. Third, and finally, it was argued that there was no evidence before the

trial judge to enable a finding to be made that Mr. Sweeney was incapable of driving by virtue of the presence of the drug concerned.

In that context, it is important to distinguish between a drug driving case and the majority of drink driving prosecutions which relate

to an allegation of driving with a concentration of alcohol above the permitted threshold. In such cases, a person commits an offence

simply by driving with a concentration of alcohol above the permitted level. No evidence of incapacity is, therefore, required.

However, there is no equivalent threshold requirement in respect of drugs and it does, therefore, remain the case that the mere

presence of a drug, without some evidence that the drug concerned rendered the driver incapable of driving, is insufficient to sustain

a conviction.

1.4 Against those three points, counsel for the notice party/respondent ("the D.P.P."), in addition to arguing on the merits of the

points themselves, raised two further broad arguments. First, it was said that all, or at least some, of the points made on behalf of

Mr. Sweeney concerned the assessment of evidence before the District Court. In those circumstances, it was suggested that an

appeal to the Circuit Court was a more appropriate remedy and that, therefore, judicial review did not lie. Second, it was said that

the only points which could properly be relied on in a judicial review application were points which had been raised in the trial court. It

was said that not all of the points now sought to be relied on were raised before the respondent District Judge. Against that brief

description of the issues, I propose to turn first to a somewhat more detailed account of the facts.

2. The Facts

2.1 On the 30th October, 2006, Mr. Sweeney was arrested by Garda Paul Duane at Farranamartin, Tuam, Co. Galway, pursuant to s.

49(8) of the Road Traffic Act 1961, ("the 1961 Act") as amended, on suspicion of committing an offence under s. 49(1), (2) or the (3)

of the 1961 Act. Mr. Sweeney was additionally told that he was being arrested for drunk driving. It appears that Garda Duane’s

suspicion was based on Mr. Sweeney’s appearance and manner when stopped at a routine garda checkpoint. In a written statement

which was produced in evidence in the High Court and which was sworn to have formed the basis of his evidence before the District

Court, Garda Duane described Mr. Sweeney as being “disorientated in speech and manner” and his eyes being “bloodshot, glazed and

dilated”, all of which were said to be indicia of being under the influence of alcohol or a drug. Mr. Sweeney was then taken to Tuam

Garda Station where he elected to provide two samples of his blood to a designated doctor. As noted earlier, one sample was

provided to Mr. Sweeney. The other sample was sent to the Bureau for testing.

2.2 Then, on the 16th November, 2006, Garda Duane received a certificate from the Bureau stating that the concentration of alcohol

in Mr. Sweeney’s blood was nil milligrammes per 100 millilitres of blood. A copy of this certificate was also provided to Mr. Sweeney. As

a result of this certificate, Mr. Sweeney gave affidavit evidence before the High Court that he was of the belief that there was no

longer any necessity to retain the sample which he held and, therefore, that he disposed of it. A second certificate was provided to

Garda Duane on the 10th February, 2007, stating that “cocaine class” was found in the specimen. A summons was then issued on the

26th February, 2007, charging Mr. Sweeney with an offence contrary to s. 49(1) and 6(a) of the 1961 Act, as amended.

2.3 Mr. Sweeney was tried in the District Court before the respondent District Judge on the 7th December, 2007. The second

certificate was adduced in evidence on that date by the presenting officer, Inspector Francis Nicholson. The only two witnesses to

give evidence were Mr. Sweeney and Garda Duane. Garda Duane was cross-examined by the solicitor for Mr. Sweeney, Ms. Dempsey.

She put it to him that the reason Mr. Sweeney was driving was because he had been requested to travel to Tuam by other Gardaí.

Garda Duane said he had no knowledge of this and further added that he was merely carrying out a routine checkpoint when Mr.

Sweeney came to his attention. Garda Duane also stated that he was not in position to contradict an assertion that Mr. Sweeney

was being followed by an unmarked police car. Mr. Sweeney gave evidence to the effect that he had been requested to travel to

Tuam by members of An Garda Síochána, that he would not have otherwise driven at the time in question, and that he was being

followed by an unmarked police car. Mr. Sweeney was not cross-examined. Mr. Sweeney was convicted and sentenced to six months

imprisonment and disqualified from driving for two years.

2.4 As the broad issues relied on by the D.P.P. have the potential to influence the way in which it might be appropriate for this Court

to approach the specific issues relied upon on behalf of Mr. Sweeney, I propose to address those issues first. I will, therefore, turn to

the question of whether judicial review is appropriate.

3. Is Judicial Review appropriate?

3.1 As the authors of Hogan and Gwynn Morgan, “Administrative Law in Ireland” (4th Edition, 2010) point out, at para. 10 - 151, it

has been frequently stated in judicial review proceedings that the High Court does not act as a court of appeal from decisions of

other tribunals. The authors cite, in that context, Lennon v. Clifford [1992] 1 I.R. 382, at p. 386 per O'Hanlon J. and the express

approval of that statement of O'Hanlon J. by this Court on appeal in the same case, Lennon v. Clifford [1996] 2 I.R. 590 at p. 593 per

Murphy J. Various other comments to like effect are also cited.

3.2 It has sometimes been said that judicial review is concerned with whether the decision maker whose action is sought to be

reviewed (be it a person or body exercising legal power or a court established by statute) has acted within its jurisdiction. In that

context, it is also sometimes said that such a decision maker may exceed its jurisdiction if in breach of obligations such as the

requirement to adopt constitutionally fair procedures, the need to consider all but only relevant factors and other issues which have

been determined to effect jurisdiction. However, it may well be that the use of the term "jurisdiction" in such circumstances has, at

least in some cases, been a cause of confusion. The term "jurisdiction" can also be used in a narrow sense. In that sense it means

simply whether the person, body or statutory court concerned has a power to embark on the relevant decision making process at all.

However, it is clear that, in the context of considering whether judicial review lies, the term "jurisdiction" is used in a wider sense and

covers, amongst other things, the type of cases to which I have just referred.

3.3 It is in that sense that the phrase "error within jurisdiction" is used in the jurisprudence. That phrase is designed to emphasise the

distinction between the types of issues which can give rise to judicial review, on the one hand, and those issues which can only be

pursued by an appeal, on the other. Because the legal power to make decisions of a particular type is vested in a person, body or

statutory court, then, prima facie, and provided that the circumstances which confer the power to make the decision in the case in

question exist, a decision made by the relevant entity within the parameters of what the law allows is, prima facie, valid. While the

legal power to make a particular decision may be given exclusively to some such entity, it remains the case that Article 34.3.1 of the

Constitution confers on the High Court a full original jurisdiction over all questions "of law or fact, civil or criminal". Even where

exclusive jurisdiction is conferred on some other person, body or court, it remains the case, as Henchy J. pointed out in Tormey v.

Ireland and the Attorney General [1985] I.R. 289, that the role conferred on the High Court by Art. 34.3.1 can be invoked to ensure

that "the hearing and determination will be in accordance with law" (see p. 297).

3.4 In the light of that observation, it seems to me that it may be more helpful to describe the overall role of the High Court in judicial

review (and the role of this Court, and indeed the Court of Appeal, when it comes into existence, as appellate courts exercising

constitutional jurisdiction on appeal from the High Court's judicial review jurisdiction) as concerned with whether a decision of a

person, body or statutory court which affects legal rights (arising from the law conferring on that person, body or court the legal

power to make a decision of a particular type) is lawful. On that basis, various categories of grounds on which judicial review can be

granted can be seen to be examples of a finding that the ultimate decision made affecting legal rights is not lawful.

3.5 Such an analysis does not, of course, answer every question. It obviously leads to the next question as to just what it is that

renders a determination affecting legal rights to be regarded as unlawful or, in the words of Henchy J., not "in accordance with law".

In the particular context of this case, the question arises as to what type of error actually renders a decision of a statutory court

unlawful as opposed to being merely regarded as being in error. The so called "error within jurisdiction" jurisprudence must be seen in

that light. Some errors may be such as render the ultimate decision unlawful and thus capable of being quashed by way of judicial

review. Some errors do not render the decision unlawful and are only capable of being corrected, if at all, by an available appeal. It

should also, in that context, be recalled that there would be little point in making any distinction between a judicial review and an

appeal if there were no difference in substance between the sort of issues which could be canvassed in the respective cases.

3.6 It is important, therefore, to emphasise that judicial review is fundamentally concerned with the lawfulness of decisions taken

affecting legal rights whether by persons, bodies, or courts having statutory jurisdiction. Judicial review is not concerned with the

correctness of those decisions. There may be some legitimate debate as to the type of error which can lead to a decision being

regarded as unlawful rather than simply incorrect. However, the fundamental distinction between unlawfulness, which can give rise to

a decision being quashed on judicial review, and incorrectness, which can not, remains.

3.7 It is in that context that the issue arises as to the extent to which it is ever appropriate to grant judicial review quashing a

decision because of an alleged absence or inadequacy of evidence. It is clear that the absence of evidence of a fact which must

exist for the court or tribunal to have jurisdiction in the first place may well provide a ground for judicial review (see for example State

(Holland) v. Kennedy [1977] I.R. 193). But there is a clear logic in treating such a case as being one where judicial review lies. As

already noted, judicial review is concerned with the lawfulness of a decision affecting legal rights. If the decision maker did not have

jurisdiction to make the decision in the first place, then clearly the decision was unlawful. If a certain set of facts are necessary in

order to establish that jurisdiction exists, then the absence of any evidence of the existence of those facts demonstrates that the

decision maker has not been shown to have jurisdiction at all. There is, thus, a clear distinction between evidence of facts which are

a necessary pre-condition to the exercise of any jurisdiction at all, on the one hand, and evidence of facts which are relevant to the

way in which the decision maker exercises a jurisdiction which has been shown to exist, on the other. In a case such as this, where

an accused is tried before the District Court on a charge of driving under the influence of a drug, the relevant District Judge clearly

has jurisdiction in the narrow sense provided that the accused is properly summonsed to appear before the Court. Whether the

accused is guilty is a question of fact (or, in many cases, a mixed question of law and fact) to be decided by the District Judge on

the evidence. Save in an extreme case, it is not a matter for the High Court (or this Court on appeal), in considering whether to

quash a conviction thus arising, to, to use the language of Keane C.J. in D.P.P. v. Kelliher [2000] IESC 60, inquire "… into the merits

into the decision and inquiring whether on the facts before him the District Judge was right or wrong in the course that he took. That

is not a course which is open to the Superior Courts to take in judicial review proceedings. It is tantamount to affording the Director a

right of appeal in such a case and of course it must inevitably follow that such a right of appeal would have to exist also in the case

of an accused person who conversely took exception to an order returning him or her for trial".

3.8 Thus, there are very significant limitations on the extent to which it is appropriate for the superior courts to exercise their judicial

review jurisdiction arising out of allegations that the evidence before a lower court or other decision maker was insufficient to justify

the conclusions reached rather than insufficient to establish that the decision maker had any lawful capability to make the relevant

decision in the first place. Absence of a lawful power to make the decision would render the decision unlawful. Save in an extreme

case, absence of sufficient evidence as to the merits would only render the decision incorrect and, thus, not amenable to judicial

review.

3.9 But there is a further matter for consideration. That is the availability of an appeal. The default position on the invocation of

judicial review as opposed to an appeal as a method of challenge in criminal proceedings is set out in the judgment of Hederman J. in

Sweeney v. Brophy [1993] 2 I.R. 202 at p. 211, where he observed:

“In my judgment certiorari is an appropriate remedy to quash not only a conviction bad on its face or where a court or

tribunal acts without or in excess of jurisdiction but also where it acts apparently within jurisdiction but where the

proceedings are so fundamentally flawed as to deprive an accused of a trial in due course of law. I take this opportunity

of emphasising that certiorari is not appropriate to a routine mishap which may befall any trial; the correct remedy in

that circumstance is by way of appeal.”

3.10 In Gill v. Connellan [1987] I.R. 541, Lynch J. held that the applicant had not received a satisfactory hearing before the District

Court and the question was whether an appeal to the Circuit Court was an adequate alternative remedy. He held at p. 548 that it

was not, stating:

“In the present case however both facts and law are at issue. Neither the facts nor the law have been adequately heard

in the District Court. On an appeal to the Circuit Court, therefore, the appeal could hardly be said to be by way of

rehearing - the case would more truly be heard for the first time. The applicant and his solicitor would be deprived of

the possible advantage of having gone over the whole facts and law and having heard the submissions and cross-

examination by the prosecuting superintendent in the District Court.”

3.11 An early example in the context of administrative decisions is The State (Abenglen Properties Ltd) v. Dublin Corporation [1984]

I.R. 381, where a conditional grant of planning permission was challenged by the grantee through judicial review proceedings, rather

than through an appeal to An Bord Pleanála. In considering which avenue was the more appropriate, O’ Higgins C.J. stated, at p. 393:

“The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the

exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent

the court from acting. It seems to me to be a question of justice. The court ought to take into account all the

circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative

remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach

of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial.

Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of

such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an

error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides

adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question.

In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some

particular reason, the appeal or alternative remedy is not adequate.”

In that case, this Court was satisfied that the appeal provided under statute to An Bord Pleanála was adequate as An Bord Pleanála

had full jurisdiction to consider all aspects of the appeal and could also state a case to the High Court.

3.12 In McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497, Barron J. was faced with the question of whether a statutory appeal or

judicial review was appropriate in circumstances where there was an allegation that a planning authority had breached the obligation

to obey fair procedures by determining the matter in question on a version of the facts which had not been fully disclosed to the

applicant. Barron J. identified the following as being the key considerations in any such determination, at p. 509:

“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by

way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken

steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of

common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the

applicant has not gone too far down one road to be estopped from changing his or her mind.”

Applying these criteria, Barron J. felt that, as the applicant had yet to receive a fair determination on issues of fact, an order of

certiorari was appropriate in the circumstances.

3.13 Similar sentiments were again expressed in a criminal context in Nevin v. Crowley [2001] 1 I.R. 113. Here, a sentence had been

imposed by the District Court without affording the accused an adequate opportunity to be heard. Despite the initiation of an appeal

to the Circuit Court, an order of certiorari was nonetheless granted by the High Court and upheld by the Supreme Court. At p. 118-

119, Murray J. stated:

“Where a trial, whether summary or on indictment, has been conducted in such a way as to be in breach of a

fundamental principle of constitutional justice, the mere existence of a right of appeal cannot be an obstacle to the

granting of an order of certiorari .”

3.14 Thus, it is clear that a court may refuse to consider a judicial review application where it is apparent that the complaint made is

one which is more appropriately dealt with by means of a form of appeal which the law allows. There can, of course, be cases where

the nature of the allegation made is such that, if it be true, the person concerned will have, in substance, been deprived of any real

first instance hearing at all or at least one which broadly complies with the constitutional requirements of fairness. To say that

someone, who has been deprived of a proper first instance hearing at all, has, as their remedy, an appeal is to miss the point. In such

circumstances what the law allows is a first hearing and an appeal. If there has, in truth, been no proper first hearing at all, then the

person will be deprived of what the law confers on them by being confined, as a remedy, to an appeal. In such a case, judicial review

lies to ensure that the person at least gets a first instance hearing which is constitutionally proper and against which they can, if

they wish, appeal on the merits in due course.

3.15 Where, however, a person has had a constitutionally fair first instance hearing and where their complaint is that the decision

maker was wrong, then there are strong grounds for suggesting that an appeal, if it be available, is the appropriate remedy.

3.16 It seems to me that while there may not be complete consistency between all of the authorities, the balance of the case law

suggests that the following principles apply. First, judicial review is concerned with the lawfulness rather than the correctness of the

decision sought to be challenged. Second, where the jurisdiction of the relevant decision maker to embark on the process of making

the relevant decision is either not challenged or is established, an error by the decision maker in reaching the necessary conclusions

to determine the appropriate decision to be made does not, of itself, necessarily render the decision unlawful. At a minimum, it

requires a fundamental error to raise the prospect that the decision is not merely incorrect but also unlawful. It is unnecessary, for

the purposes of this case, to attempt any exhaustive examination of what might be said to be the type of error which is sufficiently

fundamental to render a decision unlawful in all types of cases. For present purposes, it can at least be said that issues concerning

the adequacy of evidence before a decision maker (as opposed to a complete absence of evidence of a necessary matter) will not

render a decision unlawful. Third, even if judicial review might otherwise lie, a court will not exercise its jurisdiction where the law

allows for an appeal and where an appeal would be an appropriate remedy to deal with the complaint made. Thus, there may be

circumstances where judicial review will not lie against a first instance or initial decision but where it might lie against a similar

decision of a body from which no appeal or no further appeal lay.

3.17 I propose to apply those principles to each of the three points raised on behalf of Mr. Sweeney when dealing with the respective

points themselves for it is easier to understand the application of those principles when the precise nature of each point has been

fully explored.

3.18 Against that background, I next turn to the question of whether the points now sought to be relied upon on behalf of Mr.

Sweeney were properly raised in the District Court.

4. Were the points raised in the District Court?

4.1 The first two points concern delay. First, the almost 14 week gap between the taking of the specimens on the 30th October,

2006, and the receipt of the second certificate on the 10th February, 2007, is said to give rise to a prejudicial delay as Mr. Sweeney

believed that it was not longer necessary to retain the sample after he received the first certificate as to alcohol content. Thus, it is

said that he no longer has any means of independently testing the sample for the presence of cocaine class or cannot eliminate the

possibility of contamination. It is accepted by Mr. Sweeney that there was no statement made to the effect that there would be no

prosecution following receipt of the first certificate. However, it was contended on Mr. Sweeney's behalf that it is reasonable for a

member of the public to consider an investigation as at an end in such circumstances in the absence of a notification to the contrary.

Second, it was contended on behalf of Mr. Sweeney that the analysis of his sample by the Bureau and the consequent issuing of the

certificate of presence of cocaine were not carried out "as soon as practicable" as required by statute. The exact extent of the

submissions made by Ms. Dempsey on the issues of prejudicial delay and whether the tests were carried out “as soon as practicable”

is somewhat unclear on the evidence before the High Court. However, it is accepted in the affidavits of both Inspector Nicholson and

Garda Duane that submissions were made on this general area of delay. Inspector Nicholson averred that “Ms. Dempsey made

submissions to Judge Fahy on the delay in having the sample analysed…” and this is confirmed by Garda Duane, who also averred,

“Ms. Dempsey made submissions to the Respondent in relation to the delay in examining the blood sample for drugs after it had been

examined for alcohol and she asked that the charge be struck out on that basis…” In a replying affidavit, Ms. Dempsey avers that she

“did aver to the dangers inherent in the delay between the two blood samples…”.

4.2 The affidavits sworn show a divergence in recollection amongst those involved in the District Court on the third point. Inspector

Nicholson’s affidavit and Garda Duane’s first affidavit do not make direct reference to the incapacity point. Rather, they both aver to

the effect that Ms. Dempsey did not make any submission as to whether “Cocaine class” was a drug or intoxicant known to the law.

In response, Ms. Dempsey avers that the incapacity argument she made related to the degree of incapacity caused by the presence

of the drug and not whether it was known to the law. However, this was subsequently denied in Garda Duane’s second affidavit. As

there was no cross-examination of the deponents on their affidavit evidence, it is not possible to resolve this dispute. In his High

Court judgment, O’Keeffe J. also referred to this dispute at paras 24 and 25. There, he concluded that the issue as to the sufficiency

of evidence on the incapacity point was not a matter for judicial review, and that, in any event, the issue raised in the District Court

had been as to the status of “Cocaine Class” rather than its effect on Mr. Sweeney’s ability to drive.

4.3 To the extent necessary, I also propose to discuss the application of this general question in respect of each of the separate

grounds now raised when individually addressing the specific points urged on behalf of Mr. Sweeney in each such case. I now turn to

those grounds.

5. The Prejudice Point

5.1 As noted earlier, the point made under this heading is that Mr. Sweeney was prejudiced by being given a certificate from the

Bureau certifying a zero alcohol concentration (in the context of his having been arrested on suspicion of drink driving) where there

was no intimation that further tests concerning the possible presence of a drug were to be conducted. As also pointed out, Mr.

Sweeney gave evidence that, as a result of receiving the first certificate, he discarded the blood sample which he had been given in

the garda station on the basis of his assumption that he would not now be charged.

5.2 In that context, counsel placed particular reliance on Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260. The applicant in

that case sought to restrain the D.P.P. from taking any further steps in prosecuting her following a road collision causing the death of

another driver. The applicant had procured reports stating that the cause of the accident had been the deflation of her back left

tyre. After these reports were furnished to An Garda Síochána, the applicant’s solicitor was informed by the gardaí that the D.P.P.

had decided not to direct the issue of any further prosecution. However, a summons was later issued against the applicant charging

her with dangerous driving causing death. It was explained by the D.P.P. to the applicant’s solicitor that this reversal had resulted

from an internal review of the original decision. It was conceded that no new information had come to light in the intervening period.

The applicant sought to challenge her prosecution on two initial judicial review grounds, namely that the reversal was ultra vires or

that the failure to notify the applicant that the original decision could be reversed amounted to a breach of the applicant’s right to

fair procedures. Two further but related grounds were permitted to be argued by the High Court.

5.3 On appeal by the D.P.P. to this Court against the decision of the High Court (Kearns J.) to prohibit the further prosecution, a

number of judgments were delivered. It was accepted by all members of the Court that the basis on which Kearns J. had granted

relief, being that the D.P.P. had not complied with his own guidelines, was not part of the permitted grounds properly before the High

Court and could not, therefore, stand.

5.4 In the judgment for the majority, Keane C.J. (with whom Denham and Geoghegan JJ. agreed) referred to the decision of Finlay P.

in The State (O’Callaghan) v. O’hUadhaigh [1977] I.R. 42, before adding:

“I am satisfied that the decision of Finlay P. in that case - that [the D.P.P.] is not exempt in the performance of his

statutory functions from the general constitutional requirements of fairness and fair procedures - was correct in point of

law. It also seems to me to follow inexorably from that proposition that where, as here, the Director avails of his

undoubted right not to give any reasons for a decision by him to reverse a previous decision not to prosecute, but

concedes that there has been no change of circumstances, his decision is, as a matter of law, prima facie reviewable on

the ground that there has been a breach of fair procedures. Whether such a breach has been established must, of

course, depend entirely on the circumstances of the particular case.”

Keane C.J. also held that the D.P.P., “as a matter of law, is entitled to reverse a decision already arrived at not to prosecute, even in

the absence of new evidence or different factors, where he is of the view that his original decision was erroneous.” The fact that the

applicant had not been prejudiced in her defence in any way by acting in reliance on the original decision was highlighted by Keane

C.J. and he suggested that a different result might have arisen if that had been the case:

“Moreover, assuming that the doctrine of equitable estoppel applies in a case of this nature, one could not say that

there followed in the legal sense some detriment to the applicant which would render inequitable the continuance of the

prosecution, since her ability to defend the proceedings had not in any way been impaired. Different considerations

would have arisen if, for example, on receipt of [the D.P.P.'s] first decision, the wheel and tyre had been disposed of. In

such a case, one could conceive of a prosecution being restrained either on the basis of an equitable estoppel having

arisen or since the applicant could not be deprived of her constitutional right to a trial in due course of law because of

the loss of evidence resulting from [the D.P.P.'s] actions.”

5.5 Returning to the fair procedures argument arising out of the failure to inform the applicant of the possibility that his first decision

could be reversed, Keane C.J. observed that, as the procedures of the D.P.P. were not “part of the law” (rather, in his opinion, they

were merely an internal system of review), the applicant could not have been assumed to have been aware of possibility of reversal.

In the circumstances, he concluded that the applicant:

“was subjected to a further and entirely unnecessary layer of anxiety and stress. Viewing the matter objectively, and

leaving aside every element of sympathy for the applicant, I am forced to the conclusion that in circumstances where

[the D.P.P.] candidly acknowledges that there was no new evidence before him when the decision was reviewed, the

applicant was not afforded the fair procedures to which, in all the circumstances, she was entitled. It follows that the

requirements of the Constitution and the law will not be upheld if the appeal of [the D.P.P.] in the present case were to

succeed.”

5.6 A concurring opinion was delivered by McGuinness J., dismissing the appeal on the particular facts of the case. Although Murphy J.

delivered a dissenting opinion on the basis that he was unconvinced of the legal arguments made by the applicant to justify a

prohibition, he did confess to “a sense of relief that my views have not prevailed” in the particular circumstances of the case.

Therefore, the decision of the High Court to prohibit any further prosecution of the applicant was upheld, albeit on different grounds.

5.7 In substance, therefore, two principles can be derived from Eviston. First, there may be a fair procedures requirement which

arises in circumstances where the D.P.P. reverses a previously communicated decision not to prosecute without giving any reasons.

Second, there may be circumstances where an accused, who has suffered prejudice as a result of placing reliance on a communicated

decision by the D.P.P. not to prosecute, can argue that a trial in due course of law in accordance with the Constitution is no longer

possible.

5.8 However, there is a very clear distinction between the facts in this case and the facts in Eviston. In the latter case, the accused

was given a clear and express statement by the prosecuting authorities to the effect that no prosecution was going to take place.

Here, the most that can be said is that Mr. Sweeney made an assumption, based on the fact that he was arrested on suspicion of

drunk driving and received a certificate of zero alcohol concentration, that no prosecution was to take place. The issue which arises

is as to whether the principles identified in Eviston extend as far as a case such as this.

5.9 I should first indicate that, in my view, this is a point in respect of which judicial review would, at the level of principle, lie. If an

accused has a legitimate basis for suggesting that a prosecution cannot fairly be pursued on the merits because of an assurance that

no prosecution was to be brought, then that is a matter which goes to the constitutional fairness of the accused being tried in the

first place, rather than the exercise by the relevant District Judge of an adjudicative role on the merits of the prosecution. It,

therefore, follows that it is necessary to consider the merits of the point.

5.10 In my view, it is not necessary to consider whether there may be some circumstances where the conduct of the prosecuting

authorities, while falling short of an express direct statement to the effect that an accused will not prosecuted, may nonetheless be

sufficiently close to such an express statement that the same consequences as were found to flow in Eviston should arise. Even if

such a possibility exists, this case must, in my view, fall a long way short of the sort of circumstances where the conduct of the

prosecution could be taken to amount to a clearly implied confirmation that no prosecution was to follow. Mr. Sweeney must be taken

to know the law. The law allows for prosecution both for drink driving and drug driving although the precise parameters can be, for

the reasons already analysed, somewhat different. The reason for the communication of a relevant suspicion of an arresting garda to

a person who is to be required to give a sample for analysis is that the person concerned is entitled to be told the legal basis for

arrest and the requirement to provide the requested sample. The fact that a garda may entertain a reasonable suspicion of drunk

driving does not mean that a person cannot quite properly be charged with drug driving, if the result of analysis of a relevant sample

establishes the presence of a drug and if sufficient evidence of incapacity to drive is also available.

5.11 In those circumstances, it does not seem to me that the combination of an arrest for drunk driving and the provision of a

certificate of zero concentration of alcohol carries with it a clear indication on the part of the prosecuting authorities that the person

concerned will not be charged. There is no necessary reason why separate analysis for the presence of respectively alcohol and drugs

may not be carried out. Indeed, common sense would suggest that there are likely to be separate analysis for different substances.

The fact that one analysis demonstrates the absence of alcohol does not carry with it any reasonable expectation or inference that

there may not be another analysis for drugs and that such analysis may prove unfavourable to the person concerned.

5.12 In those circumstances, I am not satisfied that there is any merit to the argument put forward under this heading based on

Eviston. There was no clear intimation by the prosecuting authorities that Mr. Sweeney would not be charged. Even if assuming,

without deciding, that it is possible that conduct, short of a clear express statement on the part of prosecuting authorities, may be

such as may amount to the same thing as a clear express statement, then the conduct of the prosecuting authorities in this case

falls a long way short of giving any such implied clear assurance. In my view, the trial judge was correct to dismiss the judicial review

challenge on this ground and the appeal on that ground should, therefore, be dismissed. I next turn to the ground based on whether

the certificate of the Bureau in relation to cocaine can be said to have issued "as soon as practicable".

6. Was the Certificate issued as soon as practicable?

6.1 Section 19 of the Road Traffic Act 1994, as enacted, provided:

“(1) As soon as practicable after it has received a specimen forwarded to it under section 18, the Bureau shall

analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a

drug or drugs 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 18 as the person from whom the specimen was taken or who provided it.

(4) In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act, it shall be

presumed until the contrary is shown that subsections (1) to 3 have been complied with.”

Section 19 was repealed by s. 33(c) of the Road Traffic Act 2010 but was the provision in force when the events which are the

subject of the allegation of drug driving in this case occurred.

6.2 In Director of Public Prosecutions v. Corrigan [1980] I.L.R.M. 145, Finlay P. had to consider a predecessor to s. 19 of the 1994

Act, being s. 22 of the Road Traffic (Amendment) Act 1978, ("the 1978 Act") which also contained a requirement for specimens to be

analysed and for the resulting certificate to be forwarded “as soon as practicable”. Section 23(2) of the 1978 Act (in making provision

similar to s.19(4) cited above) also provided:

“A certificate expressed to have been issued under s. 22 shall … until the contrary is shown, be sufficient evidence of

compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by or under this Part or

under Part III of the Act of 1968.”

6.3 The certificate in this case, stating that Mr. Corrigan’s blood alcohol was in excess of the legal limit, had been sealed on the 15th

November, 1979, three weeks after the blood sample had been taken. However, the arresting garda was unable to say when he had

received the certificate, and no evidence was given by Mr. Corrigan as to when he received it. The District Judge fixed the date of

receipt as the 18th December, 1979, as this was the date on which the arresting garda prepared his report. The District Judge

concluded that this time lapse was not “as soon as practicable” and dismissed the charge against Mr. Corrigan. The D.P.P. appealed

by way of case stated.

6.4 After citing ss. 22 and 23 of the 1978 Act, Finlay P. commented:

“The effect of these two sections may be summarised as indicating that the Bureau has two obligations with regard to

time and the first is to analyse the specimen as soon as practicable after it receives it and the second is to send to the

Garda Station and to the defendant the certificate as soon as practicable after analysing the specimen. The second

feature is that there is a rebuttable presumption arising from the production of the certificate itself that these two

obligations inter alia have been complied with by the Bureau and that therefore the onus of establishing that they have

not is upon the defendant.” (emphasis added)

He further observed:

“Having regard to the presumption contained in Section 23 it seems to me clear that it is not possible for a mere lapse

of time without any other evidence, and it certainly would not be possible for a lapse of time of approximately one

month without any other evidence, for a court properly to reach the conclusion that a specimen was either not

analysed or a certificate was not sent as soon as practicable. In order for a court to reach a decision to that effect it

would be necessary for it to have before it material indicating the practical difficulties and surrounding circumstances

under which either or both of these activities were carried out by the Bureau on the one hand, and the effect and

consequences of any delay that occurred on the other. The onus of establishing the facts from which a court could

draw conclusions on these two topics is clearly, having regard to the terms of the sections, upon the defendant.”

(emphasis added)

Ultimately, Finlay P. held that the District Judge was not entitled to reach a conclusion that either the specimen had not been

analysed as soon as practicable or that the certificate had not been sent as soon as practicable on the basis of the mere lapse of

time as this ignored the presumption contained in s. 23 of the 1978 Act.

6.5 In Hobbs v. Hurley (Unreported, Costello J., High Court, 10th June 1980), a lapse of four weeks had occurred between the taking

of the relevant sample and the furnishing of a certificate. The defendant in that case called a witness from the Bureau in an attempt

to demonstrate a delay in sending the certificate. Of note are the observations made by Costello J. in relation to ss. 22 and 23:

“Firstly the statute requires the Bureau to forward the certificate as soon as practicable after the specimen has been

analysed and the concentration of alcohol in it has been determined. These words are not synonymous with an obligation

to forward it as soon as possible. Had such words been used they would have imposed a more severe obligation on the

Bureau than it now in fact has. Secondly, it must be borne in mind that the obligation imposed by the section is

contained in a penal statute and so must be strictly construed. Thirdly, when considering what difficulties can properly

be taken into account in deciding whether the Bureau's statutory obligation was carried out as soon as practicable the

content and surrounding circumstances should be considered. In particular the nature and the purpose of the obligation

must be borne in mind.

…

The completed certificate is required to be sent to the Garda Station as soon as practicable because the prosecuting

authorities will need it to decide under which sub-section (if any) of s. 49 the arrested person should be prosecuted. The

arrested person may himself have retained a specimen of blood or urine for analysis (see s. 21 of the Act of 1978) and it

is clear that the purpose of sending him a copy of the certificate as soon as practicable is to make him aware of the

evidence which may be adduced against him and to afford him an adequate opportunity to prepare his defence should

the certificate be adverse to him."

The above passage was also adopted by Finlay P. in Corrigan.

6.6 It is clear from that case law, therefore, that, while there is an obligation on the Bureau to analyse a sample and to forward a

certificate as soon as practicable, the onus of establishing any facts necessary to allow a court to determine whether that

requirement has been met rests on the accused. It must also be recalled that compliance with the various obligations, concerning

certification of alcohol or drug concentration or presence, contained within the Road Traffic Acts are not prerequisites to a

prosecution but rather are, for the reasons recently analysed by this Court in Director of Public Prosecutions v. Cullen [2014] IESC 7,

conditions precedent to a certificate of the Bureau having the status of evidence. Thus, the question which was before the

respondent District Judge was as to whether there had been a sufficient failure of compliance established on the part of the Bureau in

relation to its timely certification obligations such as would render the certificate of the Bureau inadmissible as evidence.

6.7 In that context, it does not seem to me that the decision of the respondent District Judge on the admissibility of the Bureau's

certificate is a matter properly amenable to judicial review. If there is a debate as to whether a lapse of time may be sufficiently

lengthy to warrant, without evidence, an inference of a failure to analyse and to issue a certificate as soon as practicable, then that

is a mixed question of law and fact to be decided by the District Judge on the basis of whatever evidence either party may wish to

lead and in the context of it being clear that the onus of establishing any relevant facts lies on the accused. Such a decision, being

at best, from the perspective of an accused, a mixed question of law and fact, is one in respect of which an appeal is clearly a more

appropriate remedy.

6.8 In those circumstances, I am not satisfied that judicial review lies at all in relation to this point. Furthermore, and in any event,

having regard to the onus which rested on Mr. Sweeney in this regard, together with his failure to call any evidence concerning the

sort of period which might be "practicable" in the context of an analysis and certification for drugs, I am not satisfied that there is

any merit in the point at all. I, therefore, turn to the question of evidence of incapacity.

7. Evidence of incapacity

7.1 As noted earlier, the issue under this heading is as to whether there was evidence before the District Judge which would have

entitled her to reach a conclusion that the presence of cocaine in the blood of Mr. Sweeney was such as rendered him incapable of

driving a vehicle so as to leave him open to being convicted under s. 49 of the 1961 Act, as amended. As noted earlier, some

evidence of incapacity is necessary in order that a court can convict of drug driving as opposed to those provisions of the Road

Traffic Acts which render it an offence simply to drive with a concentration of alcohol which exceeds the permitted maximum.

7.2 However, the evidence before the High Court was that Garda Duane had, in the District Court, given evidence in accordance with

his written statement. That written statement included the fact that Garda Duane had formed the opinion “that [Mr. Sweeney] had

consumed an intoxicant to such an extent so as to be incapable of having proper control of a mechanically controlled vehicle in a

public place and that he was committing an offence under s. 49(1), (2) or (3) of the Road Traffic Act 1961, as amended”. The fact

that that opinion was to the effect that Mr. Sweeney was incapable of driving by reason of alcohol as opposed to drugs is, for these

purposes, neither here nor there. It was evidence of incapacity to drive. Whether the respondent District Judge was persuaded by

that evidence is initially a matter for her. Evidence concerning the fact that Mr. Sweeney had been followed, it would appear, by

another garda car without attracting, it would seem, any adverse attention to his driving and evidence concerning the fact that other

members of An Garda Síochána had not been sufficiently concerned by Mr. Sweeney's condition to refrain from asking him to drive,

are all factors which, doubtless, the respondent District Judge took into account.

7.3 However, the question of whether the respondent District Judge was correct to find that there was sufficient evidence to prove

beyond reasonable doubt that Mr. Sweeney was incapable of driving by virtue of the presence of cocaine in his system is a matter

which is quintessentially one to be reviewed on an appeal on the merits rather than by judicial review. Even if it be possible to seek

judicial review on the basis that there was no evidence on which a necessary finding could be made, this case is not one where there

was no evidence. The issue was as to whether, in the light of all the evidence, the case had been established to the criminal

standard of proof. Such a case is certainly not one where judicial review is appropriate in circumstances where the accused has the

benefit of an appeal which can allow all of the evidence to be re-examined by a Circuit Judge who can reach a fresh conclusion on

the issue. For those reasons, I am satisfied that the trial judge was correct to dismiss the application for judicial review on those

grounds as well. On that basis, it is unnecessary to consider further the dispute on the affidavit evidence as to whether this point

was raised on the trial.

7.4 For completeness, I should add that, while it is clear that the question of the use of the phrase "cocaine class" in the certificate

from the Bureau and whether the use of that terminology (the term being different at least in form to the term used in the legislation)

is sufficient to allow a conviction, was raised in both the District Court and in the High Court on this judicial review application, it is

also clear that that question was not raised in the notice of appeal and was not before this Court.

8. Conclusions

8.1 For the reasons which I have sought to analyse, I am satisfied that the circumstances in which Mr. Sweeney received an initial

certificate showing a zero concentration of alcohol followed, some time later, by a certificate showing the presence of a drug, do not

equate to a case where a potential accused has been expressly assured that there will be no prosecution, thus requiring matters to

be analysed on the basis of the principles identified in Eviston. On that basis I would dismiss the ground of appeal based on the

asserted application of Eviston to the facts of this case.

8.2 Furthermore, I am not satisfied that the question concerning whether the sample analysis was carried out and the certificate of

the Bureau in this case was issued "as soon as practicable" or the question of whether the respondent District Judge was correct to

decide that there was sufficient evidence of incapacity to drive, are matters which properly arise on a judicial review application

where Mr. Sweeney had available to him a full appeal on the merits with a de novo hearing in the Circuit Court.

8.3 For those reasons, I am satisfied that the trial judge was correct to dismiss this application for judicial review. On that basis, the

appeal should, in my view, be disallowed and the order of the High Court affirmed.