High Court allows appeal against refusal of bail due to excessive police delay in processing a drink driving arrest.

Neutral Citation Number: [2008] IEHC 442

THE HIGH COURT

2008 550 SS

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF ENDA O’DWYER)

PROSECUTOR

AND

MARK O’SULLIVAN

ACCUSED

Judgment delivered by Mr. Justice Hanna on the 18th day of December 2008

1. This case comes before me as a consultative case stated from District Court Judge Michael Pattwell. It concerns issues arising from

the arrest, detention and subsequent prosecution of the above named accused for failure to provide to a designated doctor, a

specimen of urine contrary to s. 13(3) of the Road Traffic Act 1994.

2. The consultative case stated sets out the material facts. They are as follows:-

“The Accused is before Cobh District Court on foot of a charge sheet record number 577826, which charges him that on

the 8th day of January, 2007, at Cobh Garda Station, Cobh, Co. Cork, he being a person arrested under s. 50(10) of the

Road Traffic Act, 1961, having been required by Gda Enda O’Dwyer a member of An Garda Síochána, pursuant to s. 13(1)

(b) of the Road Traffic Act, 1994 to permit a designated doctor to take from him a specimen of blood or at his option to

provide for the designated doctor a specimen of urine, did fail to comply with the said requirement, contrary to Section

13(3) of the Road Traffic Act 1994.

The said charge sheet came on for hearing before me on the 28th day February, 2007.

The facts of the case have been agreed between the parties as follows. The Accused was arrested by the Prosecutor,

Garda O’Dwyer, on the 7th of January, 2007. The time of arrest was 10.30 pm. The Accused was brought to Cobh Garda

Station and arrived there at 10.55 pm. He was subsequently processed under the normal procedures with regard to

persons arrested for suspected drink driving and ultimately the designated doctor arrived at the Garda Station at 11.45

p.m. A requirement was made of the Accused by Garda O’Dwyer at 11.48 p.m under Section 13(1)(b) of the Road Traffic

Act 1994. This requirement was not complied with by the Accused and at 12.01 a.m. on the 8th of January 2007 Garda

O’Dwyer gave evidence that the Accused refused to provide a sample to the designated doctor.

Garda O’Dywer’s evidence is that the Accused was then placed in a cell and that at 1.25 a.m. he was charged by Garda

O’Dwyer as set out on Charge Sheet no. 577826 of Glanmire Garda Station. The Accused was released on station bail to

appear at Cobh District Court on the 10th of January 2007 at which Court the Accused did appear and the case came on

for hearing.

Garda O’Dwyer accepted that the Accused was detained between 12.01 a.m. and 1.25 a.m., a period of 1 hour and 24

minutes for the purposes of charging him. The evidence Garda O’Dwyer gave as to why there was such a delay in

charging the Accused was that there was a problem with the computer which had broken down. Garda O’Dwyer was

cross examined by Ms. Veronica Kelleher, solicitor on behalf of the Accused and asked why he did not write out the

necessary charge sheet by longhand. He replied that that was not Garda policy. Garda O’Dwyer accepted on cross-

examination that he was satisfied as to the name and details of the Accused. When asked why he therefore did not deal

with the Accused by way of a Summons Garda O’Dwyer gave evidence that there was a directive from Garda

Headquarters that in relation to drink driving offences they should proceed by way of a Charge Sheet only.

There are several prosecutions for breach of the same Statute before all of my Courts in my District, and, as far as I

know, all Districts, which are initiated by way of Summons.

The Accused was before the Court on foot of the charge sheet preferred against him at 1.24 a.m. on the 7th January,

2007.”

3. The learned judge then proceeds to pose the following questions.

“Arising from the above facts, the following questions arise regarding which the opinion of the High Court is sought:

1. Being mindful of the right of a citizen to his liberty unless it is absolutely necessary to deprive him of it in

accordance with Law. Is it lawful to deprive a person who is to be charged with any offence of his or her liberty to

facilitate the use of the charge sheet procedure when there is no reason to believe that person would not answer

to a summons in the normal way?

2. Was the Accused in unlawful detention at the time he was charged in Cobh Garda Station on the 8th January,

2007?

3. If the answer to the above question is ‘yes’, is the Accused lawfully before Cobh District Court?

4. If the Accused is not lawfully before Cobh District Court, should the prosecution against him be struck out?”

4. During the course of the hearing before me both parties were conscious of the fact that no apparent findings of fact were

identified on the part of the learned District Judge. The evidence, such as it was, was stated to have been agreed between the

parties and neither party raised any doubt as to the veracity and completeness of the facts as set out in the case stated. Further,

no determination appears to have been made, on the face of the case stated, on issues such as “reasonableness”, “practicality” or

“necessity” in terms of the accused’s detention and the purpose and duration of that detention. Notwithstanding this, the parties

seemed quite happy for me to deal with the matter.

5. My personal instinct is to send the matter back to the District Court. It is unsatisfactory to attempt to answer questions in what

amounts to something of factual vacuum. However, contrary to that instinct, given the views of the parties and the fact that the

learned District Judge was of the view that an important question arose as to the lawfulness of the accused’s detention pending the

reproduction of a charge sheet, I will endeavour to assist as best I can. The observation by the learned District Judge that similar

charges were dealt with by way of summons in other parts of his district seems to challenge the evidence of the prosecuting guard

that he was acting in obedience to a directive from his superiors. There is no evidence, however, nor was it suggested when this

application was moved before me, that the prosecuting guard’s evidence was other than truthful. I will, therefore, treat the learned

District Judge’s observations as being purely anecdotal. I will also proceed on the assumption (albeit a rather obvious one) that, in the

circumstances which presented themselves to the prosecution garda on the occasion in question he had available to him, in addition

to the temporarily malfunctioning computer, the facility to proceed by way of handwritten charge sheet (or typewritten if such

esteemed machines are still to be found in garda stations) or by way of summons, the latter being open due to the fact that there

was no question as to the identity or address of the accused person.

The Parties’ Submissions

6. For Mr. O’Sullivan, Mr. Cross S.C. argued that the detention of the accused between 12.01 am and 1.25 am, a period of 1 hour and

24 minutes, while awaiting the production of the computer generated charge sheet, constituted a deliberate and conscious violation

of the accused man’s constitutional rights albeit a violation of which the principal actor, namely the prosecuting guard, was probably

personally unaware. It was conceded by Mr. Cross that were I not satisfied that a conscious and deliberate violation had taken place,

then the accused man faced some serious difficulty in securing answers to the questions posed which were favourable to him.

7. No issue arose as to the lawfulness of the accused’s detention up to the point where he had allegedly refused to provide a urine

sample to the designated doctor. It is at that point (12.01am) that the accused was placed in a cell awaiting charges. Initially, it was

quite conceivable that the detention was lawful since the guard is entitled to a reasonable opportunity to prepare the charge against

the accused. However, detention which is lawful could become unlawful if the purpose for which the accused man was in custody was

not carried out as soon as reasonably possible. Again, it was conceded that the prosecuting authorities are entitled to a reasonable

time within which to perform a particular procedure on arrest. However, there are no hard and fast rules (nor could there be) as to

what would constitute a reasonable or unreasonable time period. The onus of establishing that the period of time was not more than

was reasonable rests on the prosecution. Mr. Cross S.C. argued that there was no justification for detaining the accused for 1 hour

and 24 minutes as a consequence of a directive notwithstanding the alternative means available to the guard to bring the accused

before the District Court and this rendered his detention unlawful. Thus, his prosecution became tainted with the illegality of his

detention and he was not properly before the District Court. The accused man was detained pursuant to a policy decision and that

was insufficient justification for same.

8. On behalf of the prosecuting guard, Garda Enda O’Dwyer, Mr. Kieran Kelly B.L. argued that the mechanism whereby the accused

man was brought before the District Court was a matter for the prosecuting guard. It was, in the circumstances, lawful to detain Mr.

O’Sullivan to facilitate the use of the charge sheet procedure.

9. The detention of the accused after his alleged refusal to provide a sample was necessary and the delay appropriate to facilitate

the charging of the accused. The law does not lay down any specified period and the period of 1 hour and 24 minutes in question is

not unreasonable and does not require to be objectively justified. What happened was a failure on the part of a computer and, as

soon as that could be put to rights, the accused man was charged. Where a party is lawfully detained, one should apply a “real

world” test in dealing with such matters as breakdowns in computers and printers. It follows from that that no question could arise as

to the lawfulness of the accused man’s attendance at court. Even if this was unlawful, the fact that the accused man attended court

cured any illegality.

Conclusions

10. In a case focusing so clearly on what members of An Garda Síochána are to do and how they are to conduct matters once they

have a person in entirely lawful custody, it would come as little surprise that the long esteemed and oft quoted authority of Dunne v.

Clinton [1930] I.R. 366, featured significantly in the submissions both written and oral. So too was reference made to another seminal

decision, that of the Supreme Court in The People v. Walsh [1980] I.R. 294. In the interest of conciseness, I do not propose to cite

these hallowed authorities here, but to move to the more recent decision of the Supreme Court in Director of Public Prosecutions v.

Finn [2003] 1 I.R. 372, which deals with a central issue, if not the central issue in this case, namely how the courts should approach

and evaluate the detention of a person lawfully arrested. The case in question involved a consultative case stated from the Circuit

Court. The defendant had been arrested in circumstances similar to Mr. O’Sullivan and was prosecuted for failing to provide a

specimen of his breath when lawfully requested so to do. Prior to this requirement being made of him, Mr. Finn had been arrested

pursuant to statute and conveyed to a garda station. He was then brought to an interview room and remained there for a period of

20 minutes under observation by a member of An Garda Síochána. This state of affairs came to pass as a result of guidelines issued to

members of An Garda Síochána by their superiors. There was no statutory basis for this 20 minute observed waiting period. It was a

forensically motivated procedure designed to ensure that there was “nil by mouth” consumption of materials in the lead up to the

proposed administration of a breath test.

11. Turning to the principles as set out in Dunne v. Clinton, Murray J. stated at p. 378:-

“Although the defendant in the present proceedings was not arrested on a criminal charge for the purposes 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] I.R. 366 and

applied in The People v. Walsh [1980] I.R. 294 govern the duty of the arresting gardaí in this case who were under duty

to take appropriate steps to make the statutory requirement 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.

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. 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 the 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 minutessimpliciter 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 some other special circumstances.

However, for the reasons which I set out hereunder, 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.”

12. At pp. 379 to 380 of the judgment, Murray J. goes on to say:-

“It follows from the foregoing facts that there are An Garda Síochána guidelines which stipulate that persons arrested

pursuant to s. 13(1)(a) of the Road Traffic Act 1994 must, as a matter of practice, be kept in detention for a minimum

period of 20 minutes for the purpose of ensuring that no food is consumed by him or her. At one point in the case stated

there is a reference to the purpose of the detention to ensure that nothing was taken orally, but nothing turns on this.

There was no finding of the learned Circuit Court Judge that this period of observation was extraneous to the purposes

for which the person had been arrested, namely, the taking of appropriate breath specimens pursuant to the section. In

any event, it seems to me the inescapable conclusion on the facts before us is that the stipulated minimum period of

detention and observation was associated with the purpose of the arrest and the intention of the garda to require the

defendant to provide specimens of his breath.

In my view, the facts found by the learned Circuit Court Judge demonstrate that what is involved here is the

introduction of a discrete and defined minimum period of detention, for a forensic purpose, to be observed as a matter

of practice in every case in which a person is arrested under s. 13(1)(a) of the Road Traffic Act 1994 with a view to

requiring him or her to provide specimens 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 samples. 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.

In my view, the onus is on the prosecution to justify in law recourse to a procedure involving such a prescribed

minimum period of detention and observation for a forensic purpose. It must, in my view, be justified by objective

reasons.”

13. Hardiman J stated at pp. 385 to 386 of the judgment:-

“I have no difficulty with the proposition that where the authorities are entitled to perform a particular procedure on

arrest, they are entitled to a reasonable period of time in which to do it. For example, if a decision is made to procure

the attendance of a doctor for the purpose of requiring the arrested person to provide him with a specimen of blood or

urine, a reasonable period for the attendance of the doctor is required. But, at least upon the reasonableness of the

length of time actually involved being challenged, it will, in my view, be necessary to demonstrate that the actual period

of time was no more than was reasonable. The onus of proof on this point is and must be on the prosecution since the

reasons why a particular length of time was required will normally be within its exclusive knowledge. For that purpose

evidence about the distance the doctor had to travel, any other commitments he had at the time and cognate matters

might be called so as to render a period of time which seemed excessively reasonable”

14. A recent decision of Birmingham J. in the case of Whelton v Judge O’Leary [2007] I.E.H.C. 460 was opened to me. A number of

issues raised in that case are not relevant to what here concerns us. However, highly material was the issue of delay in charging the

applicant (being judicial review proceedings) with an offence of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud

Offences) Act 2001. The applicant, like Mr. O’Sullivan, had been arrested under a statutory provision but, in that case, the arrest was

affected under s. 10 of the Criminal Justice Act 1984. He had previously been arrested and released and the arrest and detention with

which Birmingham J. was concerned had been affected under s. 10(2) which provides:-

“Notwithstanding anything in subsection (1), a person to whom that subsection relates may be arrested for any offence

for the purpose of charging him with that offence forthwith.”

15. Not dissimilar to the current case, a delay had been caused by the breakdown of a printer, used to print out the charge sheets.

In a passage which usefully conflates the issues of delay, the motivation behind it and whether or not the jurisdiction of the District

Court was ousted in those given circumstances, Birmingham J. says as follows:-

“In this case it has been expressly accepted on a number of occasions that the accused was arrested for the purpose of

being charged forthwith and while arguably he was not actually charged forthwith he was thereafter charged as soon as

practicable.

It must be stressed that the present case is not one where there was a lengthy delay post arrest, or a delay which was

unexplained which might lead to the inference that the arrest was [nor] for the purpose of charging forthwith. Here the

delay was of limited duration and an explanation was offered to the applicant at the time.

In my view it is not correct that because somebody has been placed in a cell for 55 minutes, which could have been

avoided, the District Court, as a result, loses jurisdiction to try the person. Whatever arguments that might conceivably

arise when the person was brought before the court immediately following the detention, as a person in custody, there

is no reality to the argument when, as here, the individual was released on station bail and subsequently presented

himself at the District Court.

The view I have formed appears to me to be in accordance with a considerable line of authority. In State (Attorney

General) v. Judge Fawsitt [1955] I.R 39 at p. 43 Davitt P. commented as follows:

‘The usual methods of securing the attendance of an accused person before the District Court, so that it may

investigate a charge of an indictable offence made against him, is by way of arrest or by way of formal summons,

but neither of these methods is essential. He could, of course, attend, voluntarily, if he so wished; so far as the

exercise of the Court’s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is

secured so long as he is present before the District Justice in Court at the material time. Even if he is brought

there by an illegal process, the Court’s jurisdiction is none the less effective.’

This passage was quoted with approval by Gannon J. in D.P.P. v. Stuart Clein [1981] ILRM 465 who went on to reach a

similar conclusion, though it must be said, as Mr. Sheehan has pointed out, that the case may not be directly in point as

it involves a summons as distinct from a charge sheet. However, the case of D.P.P. (McTiernan) v. Bradley [2000] 1 I.R.

420 was a charge sheet case where it was common case that the arresting Garda did not have the power of arrest he

purported to exercise. Having reviewed a number of authorities, McGuinness J. concluded that in cases where proof of a

valid arrest was not an essential ingredient to ground a charge, the jurisdiction of the District Court to embark on any

criminal proceeding was not [affected] by the fact that an accused person had been brought before the court by an

illegal process and the court should consider whether there has been a deliberate and conscious violation of the accused’s

rights, prior to embarking on the hearing. While there is no requirement that violation should be malicious or mala fides,

before a violation will be regarded as conscious and deliberate, I do believe that concept is far distant from a

malfunctioning printer.”

16. I now turn to deal with the specific queries. Again, I stress that although substantial agreement has been reached on the facts,

no finding thereon as such has been made by the learned District Judge and accordingly, in an effort to assist him as best one can in

the approach he should adopt, I will deal with each question as follows:

1. It is the view of this Court that the prosecution authorities, in this case, are at liberty to adopt such procedure as

they see fit, be it by way of charge sheet or summons, to effect the prosecution of alleged crimes. Because more than

one modus operandi is open to the gardaí, the preference for and adoption of one prosecutorial vehicle cannot, per se, be

criticised. As is correctly identified by the learned District Judge, the central issue is whether or not the period of time

taken to affect the charge is unreasonable. Where on its face it is not (see Director of Public Prosecutions v. Finn),

objective justification for any delay in processing the charge is not required. Where, however, a challenge is made to any

delay, the onus of justifying same rests with the prosecution. The question of whether or not a substantive challenge has

been made to the delay and whether such delay has been justified is a matter for the learned District Judge to determine

as a finding of fact.

That a particular means of prosecution is centrally directed does not, of itself, raise any difficulty in the view of this

Court. Once such a course is embarked upon, the prosecution authorities are entitled to a reasonable period of time in

which to go about their business. Having opted for the charge sheet procedure, the question to be addressed is whether

or not any perceived delay in doing so becomes excessive and unreasonable. A detention which begins lawfully can

become unlawful (see Dunne v. Clinton and People v. Walsh).

In the circumstances, the question arises as to whether or not the delay of 1 hour and 24 minutes caused by the

breakdown in the computer system was reasonable. It seems to me that following on from the decision of Birmingham J. in

Whelton v. Judge O’Leary, and the observations of Charleton J. in O’Neill v. Judge Patrick McCartan [2007] I.E.H.C 83 in

applying the “real world” test, one has to ask whether or not that period of time, caused as it was by a technical fault, is

reasonable. It is entirely a matter for the learned District Judge to determine if that is so. By way of observation and

observation only, I might indicate my own view that such a period time would not, on its face, appear to be at all

unreasonable in this day and age. Technical breakdowns will occur and are remedied as part of everyday working life.

Without stipulating any specific period of time, it seems to me that provided action corrective to any technical fault is

reasonably imminent then it is difficult to see how the prosecuting authorities could be faulted for awaiting remedial

action. Of course, if such remedy was not at hand be it through the seriousness of the fault or the obsolete nature of the

equipment involved, such a wait may well lose the protective cowl of reasonableness thereby rendering unlawful an

accused persons detention. There could indeed come a point when the delay involved in addressing the day to day

exigencies of technology could convert a lawful detention into a deliberate and conscious violation of an accused person’s

constitutional rights. I should, perhaps observe that, to me, this does not appear to be such a case but I must reiterate

that this is entirely a matter for the District Judge.

2. The determination of the first question, by the learned District Judge, it seems to me, would determine the answer to

this.

3. It seems to me that if the first two questions were answered in favour of the accused, it must follow that this question

be answered in the negative.

4. It would seem to follow from a negative answer to the previous question, that this question be answered in the

affirmative.