High Court allows appeal where unlawful detention taints evidence via absolute constitutional exclusion rule.

Neutral Citation Number: [2009] IEHC 39

THE HIGH COURT

2008 1031 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(AT THE SUIT OF GARDA BRIAN LAVELLE)

PROSECUTOR/APPELLANT

AND

PAUL McCREA

RESPONDENT/ACCUSED

JUDGMENT of Mr. Justice John Edwards delivered the 28th day of January, 2009.

Introduction

The proceedings herein take the form of an appeal 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, 1961. For ease of reference the

prosecutor/appellant and the respondent/accused respectively will hereinafter be referred to simply as “the prosecutor”

and “the accused” respectively.

Section 2 of the 1857 Act provides:-

“After the hearing and determination by a Justice or Justices of the Peace of any information or complaint which he

or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party

to the proceedings before the said Justice or Justices may, if dissatisfied with the said determination as being

erroneous in point of law, apply in writing within three days after the same to the said Justice or Justices to state

and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the

Superior Courts of Law to be named by the party applying”.

Section 51 of the Courts (Supplemental Provisions) Act, 1961, provides:-

“(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to

any proceedings whatsoever heard and determined by a Justice of the District Court (other than

proceedings relating to an indictable offence which was not dealt with summarily by the court). If

dissatisfied with such determination as being erroneous on a point of law, to apply in writing within

fourteen days after such determination to the said Justice to state and sign a case setting forth the

facts and the grounds of such determination for the opinion thereon of the High Court.”

The Case Stated

On the 8th July, 2008 Judge Anne Watkin, a Judge of the District Court, assigned to the Dublin Metropolitan District,

pursuant to a request from the prosecutor, stated a case for the opinion of the High Court in the following terms.

“(1) On 23rd January, 2008, the above named case was listed for hearing before me in the District Court, Richmond

Courts Complex, North Brunswick Street, Dublin 7. The accused faced the following charge, as contained in Charge

Street No. 632056:

“On the 9th June, 2007 at Blanchardstown Garda Station in the said District Court Area of Dublin Metropolitan

District, being a person arrested under s. 49(8) of the Road Traffic Act, 1961, having being required by Garda Gillian

Synnott, a member of the Garda Síochána, at Blanchardstown Garda Station pursuant to s. 13(1)(a) of the Road

Traffic Act, 1994 to provide two specimens of your breath, did refuse to comply forthwith with the said

requirement. Contrary to s. 13(2) of the Road Traffic Act, 1994, as amended by s. 23 of the Road Traffic Act,

2002”.

A copy of charge sheet No. 632056 is appended to this Case Stated at Appendix A.

(2) The case came before me on 23rd January, 2008 and was prosecuted by Mr. Ronan Cleary, Solicitor of the

office of the Chief Prosecution Solicitor. The accused was represented by Mark Byrne, B.L., instructed by Terence

Lyons and Company, Solicitors.

Evidence proved or admitted before me

(3) The first prosecution witness to give evidence was Garda Brian Lavelle. He testified that, on the morning of 9th

June, 2007, the accused had been pulled over for driving erratically, swerving left to right on the road. Garda

Lavelle testified that he spoke to the accused, who had been driving the vehicle, and detected a strong smell of

intoxicating liquor from his breath. The accused’s speech was slurred and his eyes were glazed.

(4) The accused stated to Garda Lavelle that it had been one hour since his last drink. Garda Lavelle made a

requirement of the accused, pursuant to s. 12 of the Road Traffic Act, 1994 (as amended by s. 10 of the Road

Traffic Act, 2002 and s. 2 of Road Traffic Act, 2003) to provide a specimen of his breath, and explained to the

accused the penalties for failure to provide same. The accused provided a specimen of his breath and it was a “fail”

reading. Garda Lavelle formed the opinion that the accused was intoxicated to such an extent as to be incapable of

controlling a mechanically propelled vehicle in a public place and he was arrested at 2.10 a.m. on 9th June, 2007

under s. 49(8) of the Road Traffic Act, 1961.

(5) Garda Lavelle explained the reason for his arrest to the accused, both in terms of the relevant legislation as well

as in ordinary language. The accused was given the usual legal caution and replied that he understood the reason

for his arrest. He was brought to Blanchardstown Garda Station, arriving at 2.18 a.m. At 2.21 a.m. the accused was

given his notice of rights and Form C72 was read over and explained to him by Garda William Murray, attached to

Blanchardstown Garda Station. The accused refused to sign for his notice of rights. Garda Lavelle testified that the

accused had not requested to speak to a solicitor at this stage; despite the fact that it was put to the said Garda

that the evidence of the accused would be that he had made such a request at that stage.

(6) A copy of the custody record which was before the court is appended to this Case Stated at Appendix B.

(7) Garda Lavelle observed the accused for a period of 30 minutes from 2.18 a.m. to 2.48 a.m. to ensure he

consumed nil by mouth. The reason for this period of observation was explained to the accused and it was

completed successfully. There was no Garda trained to operate the intoxilyser machine present at the station at

this time and the arrival of Garda Gillian Synnott was awaited.

(8) Garda Synnott testified that she arrived at the station and was introduced to the accused at 2.50 a.m. She

noticed a smell of intoxicating liquour from his breath and that his eyes were red and glazed. She noted the

temperature and humidity levels in the intoxilyser room were within required parameters. Garda Synnott entered her

details in to the intoxilyser machine and made a requirement of the accused under s. 13(1)(a) of the Road Traffic

Act, 1994 at 2.54 a.m. Garda Synnott explained to the accused the penalties for refusing to give a sample of his

breath as required under s. 13(1)(a).

(9) Garda Synnott stated that the accused replied that he wanted to speak to a solicitor. Garda Synnott stated

that she informed the accused that he could speak to a solicitor as soon as he had complied with her requirement.

Garda Synnott testified that she reminded the accused that he was obliged by law to provide a sample of his breath

and that he would be able to talk to his solicitor afterwards. Garda Synnott testified that she explained to the

accused in ordinary language that he was required to provide a breath sample under the law and that his solicitor

would tell him the same thing.

(10) Garda Synnott testified that the accused refused to get up from his chair and refused, in a verbally aggressive

manner, to provide a breath sample, specifically stating that he would not give a sample.

(11) A cycle of three minutes was completed on the intoxilyser machine without the accused exhaling in to it and

the machine timed out. The accused was deemed to have refused to provide a sample of his breath and was duly

charged under s.13 (2) of the Road Traffic Act, 1994 as amended by s. 23 of the Road Traffic Act, 2002.

(12) Gardaí Lavelle and Synnott both testified that at no point did the accused offer any medical reason for his

failure to provide a breath specimen when required.

(13) Under cross-examination and in response to questions from me, Garda Synnott explained that the reason she

did not accede to the requests of the accused for access to a solicitor was that she believed she could only make

one request pursuant to s. 13(1)(a) Road Traffic Act, 1994 and that if she aborted the process midway through, in

order to provide the accused with an opportunity to speak to his solicitor, she would be precluded from making any

further request under s. 13(1)(a) at a later stage.

Application for a Direction

(14) At this stage counsel for the accused sought a direction on the basis that the accused had been denied a

right of reasonable access to a solicitor and that this had, in consequence, produced the evidence relied on by the

state in prosecuting the case, namely the evidence that the accused had refused to provide a breath sample.

Submissions

(15) Counsel for the accused submitted to me an extract from the 3rd Edition of Mr. De Blacam’s “Drunken Driving

and the Law”, quoting the case of DPP v. Byrne, (Meath Chronicle 1st June, 1991).

(16) Counsel for the accused submitted to me that the failure by the Gardaí to accede to the requests of the

accused to see his solicitor was fatal to the prosecution.

(17) Counsel for the accused referred me to the wording of s. 13 of the Road Traffic Act, 1964, as amended, and

submitted that there was nothing to suggest that a Garda could only make a request of a suspect on one occasion.

Mr. Cleary, for the prosecution, agreed with this interpretation of the relevant section.

(18) Mr. Cleary for the prosecution, opened the case of Walsh v. O’Buachalla, [1991] I.R. 56 and argued that it

showed that the accused was obliged to give a sample of his breath in any event, whether his request to consult

with his solicitor was acceded to or not. Mr. Cleary pointed to the late stage in the process at which the accused

made his request, despite having been informed of his right to speak with his solicitor at the outset and despite the

fact that the accused had had the opportunity to speak to a solicitor at an earlier stage in the proceedings. Mr.

Cleary submitted that the accused should not be allowed to profit from behaviour that could be construed as an

attempt to frustrate the lawful actions of An Garda Síochána.

(19) Mr. Cleary submitted that any solicitor would have informed the accused that he was obliged to conform to

Garda Synnott’s request under s. 13(1)(a) of the Road Traffic Act, 1994. Accordingly Mr. Cleary argued that the

accused had not been prejudiced in any way, he was obliged to give a sample and access to a solicitor’s advice

would not have changed this.

My Decision

(20) I found that a request to provide a breath sample had been made of the accused and that he had made an

immediate request to consult a solicitor. I found that Sergeant Synnott declined this request due to a mistaken

belief that she would not be legally be entitled to make another request of the accused if she broke the intoxilyser

machine’s cycle in order to allow him to consult with a solicitor.

(21) I distinguished the Walsh v. O’Buachalla decision on the basis that it concerned a charge brought under s. 49

of the Road Traffic Act, 1964, as amended, rather than a charge brought under s. 13 of the Road Traffic Act, 1994,

as amended.

(22) I noted that the custody regulations and the associated notice of rights state that a person is entitled to

consult with a solicitor at any time while in custody. I said it was understandable that somebody would ask to see a

solicitor upon being asked to carry out a particular procedure in a garda station. I said that the aggressive

behaviour on the part of the accused occurred after the refusal of access to a solicitor and possibly as a direct

result of same refusal. I said there was no reason at law why Sergeant Synnott could not at least have made a

phone call to a solicitor’s office after the accused made the request to speak to a solicitor.

(23) I pointed out that if the accused had been allowed access to a solicitor, the solicitor would, amongst other

advices, have advised him to provide a breath sample. The accused would have been advised that, depending on

the reading obtained by the intoxilyser machine, he may not be charged at all, or be the subject of a one, two or

three year ban as opposed to a four year ban should he fail or refuse to provide a sample. I noted that this was a

level of information that Sergeant Synnott was under no obligation to provide, and did not provide, in the instant

case.

(24) I dismissed the charge against the accused on the basis that he had been denied a right of reasonable access

to a solicitor and that the refusal by the accused may have occurred as a consequence of the breach of that right.

The Question

(25) The prosecution, being dissatisfied with my decision, have asked me to state a case to this court on the

following question of law:-

(i) In all the circumstances, should the accused have been provided with access to a solicitor before the breath

test procedure under s. 13 of the Road Traffic Act, 1994 as amended, was completed?

(ii) If the answer to question 1 is “yes”, was I correct in dismissing the prosecution on that basis? ”

The Relevant Legislation

The relevant provisions of the Road Traffic Act 1994 are as follows:-

“Section 13

(1) Where a person is arrested under section 49(8) or 50(10) of the Principal Act or section 12(4), or where a

person is arrested under section 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda Siochána

is of opinion that the person has consumed an intoxicant, a member of the Garda Siochána may, at a Garda

Siochána station, at his discretion, do either or both of the following:

(a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the

breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

(b) (Not relevant).

(2) Subject to section 23, a person who refuses or fails to comply forthwith with the requirement under section (1)

(a) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to

imprisonment for a term not exceeding 6 months or both.

(3) Subject to section 23, a person who, following a requirement under subsection (1)(b):

(a) refuses or fails to comply with the requirement, or

(b) (not relevant),

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to

imprisonment for a term not exceeding 6 months or to both.

(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 an apparatus provided by a member of the Garda Siochána for the

purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for

determining the concentration of alcohol in the breath.”

“Section 23

(1) In a prosecution of a person for an offence under section 13 for refusing or failing to comply with a requirement

to provide 2 specimens of his breath, it shall be a defence for the defendant to satisfy the court that there was a

special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure

concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section

concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.”

The Prosecutors Submissions

Counsel on behalf of the prosecutor has submitted (i) that it was an error of law to hold that the accused had been

denied a right of reasonable access to a solicitor, and (ii) it was an error of law to hold that the mere speculative

possibility that there may have been causation was a legitimate basis on which a prosecution could be dismissed. He

further submitted that these errors were caused by a fundamental misunderstanding and/or mis-application of the

judgment of Blaney J. in the case of Walsh v. O’Buachalla [1991] 1 IR 56. In his submission the denial of access to a

solicitor was reasonable in the particular circumstances of the case having regard to the fact that it was done for a bona

fide reason (i.e. the Garda was concerned that if she interrupted the procedure she would not be able to lawfully

recommence it) and there was in any event no causation. In Counsel’s submission the Solicitor would have told the

accused the same as the Gardai namely that he was obliged to provide a sample and the penalties for a refusal.

Moreover, the prosecutor contends that it is a reasonable interpretation of the facts that the accused was doing

everything possible to frustrate the process.

Counsel further submits that, notwithstanding that it was the view of the solicitors on both sides that Garda Synnott was

mistaken in her understanding of the law, and the fact that the District Judge shared this view, it is by no means clear

that Garda Synnott was in fact mistaken. Counsel argued that there is nothing in s.13 of the Road Traffic Act 1994 to

suggest that the Gardai can make more than one lawful requirement. He contended that it is at least arguable in the light

of the strict manner in which the Supreme Court has interpreted another aspect of section 13 in the case of DPP v

McDonagh [2008] IESC 57 that Garda Synnott was correct in her view. In his submission, once you go down the road of

permitting detainees a right to suspend the intoxilyser process once it has commenced so that they can seek legal advice

all sorts potential difficulties arise, both of a legal and of a logistical nature. Counsel submitted that far from being

“mistaken”, Garda Synnott acted in a very prudent manner.

Counsel for the prosecution’s case can be succinctly summarized as follows. First there was no breach of the applicant’s

constitutional right to be afforded reasonable access to a solicitor. Secondly, if there was a breach of the said right the

exclusionary rule does not arise because nothing was done in any active sense to gather or obtain evidence during the

period of the breach. All that happened was that the accused refused to provide a sample lawfully demanded of him. That

refusal was merely passively observed. The active step of making the demand had been made before the accused

requested a solicitor. Thirdly, if there was a breach of the said right and evidence was obtained, albeit passively, during

the period of the breach the evidence in question was not liable to be excluded because there was no causal connection

between the violation of the right and the gathering of the evidence. Fourthly, although Counsel did not put it in these

exact terms, the Court interpreted him as making the further argument, based upon his contention that Garda Synnott

had acted not only reasonably but prudently in all the circumstances, that the exclusionary rule ought not to apply on

account of extraordinary excusing circumstances.

Quoting extensively from the judgment of Blaney J in Walsh v. O’Buachalla, Counsel for the prosecution sought to adopt

the learned judge’s reasoning in support of his first and third contentions respectively. In that case the accused had been

informed of his right of access to a solicitor when he arrived at the Garda station but did not seek to avail of it. It was

only when the medical practitioner arrived some 40 minutes later to take the blood specimen that, for the first time, the

accused requested access to a solicitor. This request was refused by the arresting Garda because he believed that the

request was not genuine and was made merely for the purpose of delay. The applicant was informed that he could

contact a solicitor as soon as the blood specimen had been taken. After the blood specimen was taken the applicant did

not seek to contact a solicitor. Counsel for the prosecution pointed out the following similarities between that case and

the present case. In Walsh v. O’Buachalla it was only after he was required to provide a sample that the accused first

requested a solicitor. Similarly, in the present case it was only after the requirement was made that the accused sought

access to a solicitor. Both that case and this involved 40 minute periods in which the accused could have sought a

solicitor before the specimen process commenced. In Walsh v. O’Buachalla Blaney J doubted whether on the facts of the

case there had been any breach of the applicant’s right of access to a solicitor and stated:

“I have assumed up to this that Garda Fahy did violate the applicant's constitutional rights. But there must be a

doubt as to this. At eleven minutes past midnight, the applicant was given the document informing him of his right

to communicate with a solicitor, and Garda Fahy saw him reading this document a few minutes later. From then until

six minutes to one, for approximately 35 to 40 minutes, he was in the parade room where there was a telephone.

Garda Fahy says that during this time he and other gardaí were in and out of the public office and the parade room,

so the applicant had ample time to ask if he could ring for a solicitor. Furthermore, he was told he could have a

solicitor immediately after he gave the specimen of blood. So it was only during the interval between the time the

doctor began to prepare to take the specimen and the time he had completed taking it that the applicant's request

was refused.

On these facts, while it might have been the better course for Garda Fahy to have permitted the applicant to make

a telephone call to a solicitor, it is in my opinion doubtful if there was any violation of the applicant's constitutional

rights……”

The basis on which Blaney J held that the evidence should not be excluded was that there was no causation between the

denial of access to a solicitor and the evidence sought to be adduced. He said:

“In my opinion the evidence here was not obtained as a result of the violation of the applicant's constitutional

rights. It is a case of post hoc sed non propter hoc— the evidence was obtained after the violation but not as a

result of the violation. The applicant was obliged by statute to give a specimen of his blood or urine. No advice from

a solicitor could have altered that. So his being refused access to a solicitor did not in any way lead to the

specimen of blood being obtained. Either that specimen or a specimen of the applicant's urine would have been

obtained anyway because Garda Fahy was entitled to require the applicant to provide them.

It was submitted on behalf of the applicant that if he had had access to a solicitor he could have been advised by

him. But what advice could a solicitor have given him? He would certainly not have advised him to commit an

offence by refusing to give one or other of the specimens. All he could have done was to confirm that the applicant

was required by law to provide a specimen of blood or urine. No advice could have prevented the specimen being

obtained and, accordingly, the applicant's not having had access to a solicitor in no way affected its being

obtained.

I am satisfied accordingly that even if the applicant's constitutional rights were violated there was no causal

connection between such violation and the applicant giving a specimen of his blood and accordingly the first

respondent was correct in admitting the certificate in evidence.”

Counsel for the prosecutor contends that the reasoning of Blaney J is quite simply that the accused was obliged to supply

a specimen and that legal advice would simply confirm that fact. Moreover, he contends that the basis on which the

learned District Judge distinguished Walsh v. O’Buachalla (viz (i) that in that case an incriminating sample was provided

whereas the present case concerns a refusal offence, and (ii) that a solicitor in the present case could have persuaded

the accused to comply with the requirement by a hypothetical comparison of the relevant penalties) was flawed. He

submitted that the legislative purpose of the refusal offence is not to permit an accused person to engage in a process of

weighing up the pros and cons of complying with the law. Everyone is obliged to comply with the law. He submitted that

the suggestion that a solicitor might have been able to persuade the accused to comply with the law is entirely

speculative. He submitted that the accused bore an evidential burden in respect of that type of assertion which he had

not discharged and in support of this he cited passages from the judgment of Henchy J, in the Supreme Court case of The

People(D.P.P.) v. Collins [1981] ILRM 447 at 452-453:

Counsel also relied upon the judgments of O’Hanlon J. in The People (D.P.P.) v. Spratt [1995] 1 IR 585, and Johnson J. in

The People (D.P.P.) v. Clark [2001] IEHC, both of which applied and followed Walsh v. O’Buachalla.

Further, Counsel for the prosecutor argued that to the extent that there may have been a breach of Regulation 8 of The

Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations 1987 such a breach

should not, by virtue of s.7(3) of the Criminal Justice Act, 1984, lead to the automatic exclusion of evidence.

Finally, Counsel for the prosecutor argued that it would not be in the public interest to apply the exclusionary rule in the

circumstances of this case.

The Accused’s Submissions

Counsel for the accused has submitted that the accused was being held in breach of his constitutional right of access to

a solicitor when the evidence as to his refusal was procured. He relies upon The People (D.P.P) v Madden [1977] IR 336

and The People (D.P.P.) –v- Healy [1990] 2 IR 73. In Madden O’Higgins C.J. said at 355:

“This Court is satisfied that a person held in detention by the Garda Síochána, whether under the provisions of the

Act of 1939 or otherwise, has got a right of reasonable access to his legal advisers and that a refusal of a request

to give such reasonable access would render his detention illegal. Of course, in this context the word "reasonable"

must be construed having regard to all the circumstances of each individual case and, in particular, as to the time

at which access is requested and the availability of the legal adviser or advisers sought.”

Counsel points out that in Healy it was elucidated that that right was a constitutional right. In his judgment in Healy

Finlay C.J. said at p 81:

“The undoubted right of reasonable access to a solicitor enjoyed by a person who is in detention must be

interpreted as being directed towards the vital function of ensuring that such person is aware of his rights and has

the independent advice which would be appropriate in order to permit him to reach a truly free decision as to his

attitude to interrogation or to the making of any statement, be it exculpatory or inculpatory. The availability of

advice from a lawyer must, in my view, be seen as a contribution, at least, towards some measure of equality in the

position of the detained person and his interrogators.

Viewed in that light, I am driven to the conclusion that such an important and fundamental standard of fairness in

the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin,

and that to classify it as merely legal would be to undermine its importance and the completeness of the protection

of it which the courts are obliged to give.”

Counsel then went on to rehearse for the court the effect of a breach of the right of access to a solicitor and outlined

how the exclusionary rule in respect of evidence obtained in circumstances involving a breach of a person’s constitutional

rights has developed, and in doing so cited the following passage from the judgment of Walsh J in People (D.P.P.) v.

O’Brien [1965] I.R. 142, at p.170

“The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under

the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution,

the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and

vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal

offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount

position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial

of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious

violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist,

such as the imminent destruction of vital evidence or the need to rescue a victim in peril. A suspect has no

constitutional right to destroy or dispose of evidence or to imperil the victim. I would also place in the excusable

category evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made

without a valid search warrant.

In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person

should, save in the excusable circumstances outlined above, be absolutely inadmissible.”

The Court was then referred to the decision of the Supreme Court In The People (D.P.P.) v Kenny [1990] 2 IR 110, and in

particular to the following passage from the judgment of Finlay C.J., at p.134

“The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to

the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional

obligation "as far as practicable to defend and vindicate the personal rights of the citizen."

After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the

judgment of Griffin J. in The People v. Shaw [1982] I.R. 1. I am satisfied that the correct principle is that evidence

obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that

either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied

that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court's)

discretion.”

It was further pointed out that in The People (D.P.P.) –v- Healy (to which I have previously referred) Finlay C.J alluded to

how the exclusionary rule may operate in the context of a breach of the constitutional right to have access to a solicitor,

and stated (at p 73) :

“The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a

conscious and deliberate act of a member of the Garda Síochána, is whether there is a causative link between that

breach and the obtaining of an admission.”

However, in The People (D.P.P.) v. O’Brien [2005] I.R. 206, Mr Justice McCracken, giving judgment in the Supreme Court,

commented in relation to this remark (at p 210) that :

“This would seem to imply that there may be circumstances in which statements taken at a time when an accused's

constitutional rights were being breached could nevertheless be admissible if there was no causative link between

the breach and the statement. While it is not what occurred in this case, this seems to me to be a somewhat

doubtful proposition. However if the passage refers to an admission obtained after the breach had ceased, then it

seems to me to state the legal position correctly.”

Counsel for the accused contends that the requirement for a “causative link” between the breach of a right of access and

evidence obtained by the State was rendered a moot issue by the decision of the Supreme Court in The People (D.P.P.) v

Buck [2002] 2 IR 268 where it was held that the effect of a breach of the right of reasonable access to a solicitor is to

render the detention of the person detained unlawful. In his judgment in that case Keane C.J. stated at p.281:

“…it would seem in any event to be a logical corollary of the statement of the law by this court in The Emergency

Powers Bill, 1976 [1977] I.R. 159, i.e. , that the detention of a person against his or her will pursuant to a statutory

power is permissible only where his constitutional right of reasonable access to a solicitor is observed. It would

seem to follow inexorably that his or her detention becomes unlawful as soon as that right is denied.”

I must interrupt this review of Counsel for the accused’s legal submissions to comment that while I am satisfied that the

passage just quoted succinctly encapsulates the present law as to the implications for the lawfulness of a person’s

detention of a breach of that person’s constitutional right of access to a solicitor, and that it does indeed seem to imply

that no causative link is in fact necessary for the exclusion of evidence obtained during the currency of an unlawful

detention, I was initially somewhat puzzled by a seemingly inconsistent obiter statement made towards the end of the

Chief Justice’s judgment, namely the following statement at p 283 of the report:

“Even if the continuation of the questioning by the Gardai between the time that he asked for a solicitor and the

arrival of the solicitor who visited the defendant at 8.33 pm could be regarded as a conscious and deliberate

violation of his constitutional rights, there was no causative link between the breach in question and the making of

the incriminating statements.”

However this dictum has since been explained and I will return to this presently.

Before doing so, however, I should complete my review of the case law cited in Counsel for the accused’s

submissions by noting his further submission that the proposition proffered in the first passage that I alluded to from

the judgment of Keane C J in Buck has been re-iterated and indeed confirmed in the judgment of McCracken J in

The People (D.P.P.) v. O’Brien [2005] I.R. 206 where he states at 210:

“The question was visited in a slightly different context in The People (Director of Public Prosecutions) v. Finnegan

(Unreported, Court of Criminal Appeal, 15th July, 1997), which judgment was delivered by Barrington J. In that case,

the accused had had access to a solicitor, but subsequently, in the course of being questioned, he requested a

telephone conversation with the solicitor. This conversation took place in the hearing of one or more members of

the gardaí. It was held that evidence of an interview which subsequently took place was inadmissible. At p. 42 of

the judgment it was said:-

"Even though the right to make a telephone call to a solicitor may not be, per se , a constitutional right,

once the telephone call is allowed, the detainee has a constitutional right to make that call in private.

In the present case there was a breach of the accused's constitutional rights when he was denied

private access by telephone to his solicitor. From that point on he was in unlawful detention. No

evidence was adduced to show that this unlawful detention came to an end at any particular time nor

indeed was the point addressed at the trial.”

This case confirms that the right of private access to a solicitor is a constitutional right. It does seem to me to be

manifest that where a person is held in detention, albeit that the detention itself was initially lawful, a breach of the

constitutional rights of the person detained during the period of detention must render the detention unlawful.”

I now wish to return to the somewhat puzzling obiter dictum in the Buck case. This obiter dictum has since been

explained by McCracken J The People (D.P.P.) v. O’Brien [2005]. Immediately after the passage just cited McCracken J

added (with reference to the Finnegan case):

“However, this case does not answer the question as to whether, once the breach of the constitutional right has

been remedied, the status of the unlawful detention is altered, and it becomes lawful.

The case that comes nearest to the present case is The People (Director of Public Prosecutions) v. Buck [2002] 2 I.R.

268. In that case, as in the present case, there was a very considerable delay between the request for a solicitor and

the arrival of the solicitor. However, there were two important distinctions between that case and the present case.

Firstly, no statement was made by the accused before the arrival of the solicitor and, secondly, the court held that the

delay in the arrival of the solicitor, under the circumstances, was not a breach of the accused's constitutional right of

access to a solicitor. It follows that there could have been no question of him having been in unlawful custody when he

did make the statements. Having made that finding, however, Keane C.J. continued, in a passage that is undoubtedly

obiter , at p. 283 to say:-

"Even if the continuation of the questioning by the gardaí between the time that he asked for a solicitor and the

arrival of the solicitor who visited the accused at 8.33 p.m. could be regarded as a conscious and deliberate

violation of his constitutional rights, there was no causative link between the breach in question and the making of

the incriminating statements. The accused had not made any incriminating statements prior to the arrival of the

solicitor and, on the trial judge's findings, had been advised by him as to his right not to make any statement. The

trial judge also accepted the solicitor's evidence that, at that point, the accused was relaxed and not showing any

signs of stress. It follows inevitably that there was, on the evidence, no causative link between any breach of the

accused's constitutional rights arising from the questioning before the solicitor arrived and the making of the

incriminating statements."

Notwithstanding that this passage was obiter , it does purport to deal with the situation which has arisen in the present

case. If the inculpatory statement or admission ultimately made by the accused was elicited from him by the use of

information disclosed by him while he was in unlawful detention, there would clearly have been a causative link between

the breach of his constitutional rights and the making of the statements or admissions. In those circumstances, material

which had been wrongfully obtained in breach of the accused's constitutional rights would have been used to obtain an

inculpatory statement or admission. However, the corollary to this also appears to me to be valid, namely that if the

statements were not made as the result of any material obtained in breach of the accused's rights, then they are not

tainted by unconstitutionality and, provided the accused's detention was lawful at the time they were obtained, they are

admissible. In my view, the statement quoted above from The People (Director of Public Prosecutions) v. Buck [2002] 2

I.R. 268 is a correct exposition of the legal position.”

Bearing in mind the principle expressed by Finlay C.J. in The People (D.P.P.) v Kenny [1990] 2 IR 110 (to which I have

already referred) McCracken J continued:

“In the present case, of course, the trial judge held that there was a deliberate breach of the constitutional rights,

and that any statements made before the arrival of the solicitor must be excluded. However, two questions still

remain unanswered. Firstly, whether, once the solicitor arrived and gave his advice, there was any further breach of

the accused's constitutional rights and, secondly, even if the breach had ceased, whether his detention remained

unlawful. I have no doubt that the answer to the first question must be that the ultimate access to the solicitor put

an end to any unconstitutional situation. The unconstitutionality lay in the absence of legal advice, and once that

advice had been obtained, his constitutional right had been complied with.

The much more difficult question is whether the accused's detention, having been rendered unlawful by the breach

of his constitutional rights, remained unlawful. The initial arrest of the accused was undoubtedly lawful, as was his

custody up to the time that he requested a solicitor. Thereafter, it was certainly wrongful of the gardaí to question

him pending the arrival of the solicitor but that questioning is not what created the unlawfulness of his detention.

The statements made by the accused pending the arrival of his solicitor would have been inadmissible whether there

had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate

and conscious decision of the gardaí to contact Mr. Gaffney, rather than a more convenient solicitor, when they

knew or ought to have known that there would be a very considerable delay in his attendance. That decision was

made in breach of the accused's constitutional rights and, therefore, from the moment that decision was made his

detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights

continued. Logically, therefore, once the breach of the constitutional right ceased, the detention ceased to be

unlawful.”

In summary, the accused’s case is that he was being held in breach of his constitutional right of access to a solicitor

when the evidence as to his refusal was procured. The breach of his constitutional right of access to a solicitor was

deliberate and conscious and there were no extraordinary excusing circumstances to excuse it. Accordingly this breach

rendered his detention unlawful. Counsel has contended that the evidence as to his refusal was inadmissible as having

been obtained during a period of detention rendered unlawful on account of a deliberate and conscious violation of his

constitutional right of access to a solicitor and in respect of which there were no extraordinary excusing circumstances.

He contends that it is no longer the law that the requirement identified by Blaney J in Walsh v. O’Buachalla, viz that there

must be a causal connection between the infringement and the obtaining of the evidence, needs to be satisfied before

the exclusionary rule can be relied upon. The accused contends that the current legal position is as stated in the

decisions of the Supreme Court in The People (D.P.P.) v Buck [2002] 2 IR 268 and The People (D.P.P.) v O’Brien [2005] 2

IR 206, viz that the detention of a person will be rendered unlawful if he is not afforded reasonable access to a solicitor,

and for so long as he remains deprived of a solicitor.

Finally, Counsel for the accused has submitted that there was, in any event, a causal link between the breach of his right

of access to a solicitor and his refusal to provide a specimen, namely, that if he had had a solicitor he would have had the

benefit of independent legal advice in respect of which he could have had confidence. He agrees that a solicitor would

certainly not have advised him to commit an offence by refusing to provide a sample as requested and that a solicitor

would have confirmed that he was required by law to provide a specimen of his breath as requested. However, he

contends that a solicitor would have been likely to advise him that, aside altogether from his legal obligations, the most

advantageous course of action for him would be to provide a sample, as it could possibly result in no charge being

preferred if the reading came in below the legal limit or, if over the limit, the court would have regard to the exact alcohol

reading, in the event that he were to be found guilty, in deciding on penalty and the minimum consequential

disqualification period to be imposed.

He says that he is also likely to have been advised that the law recognises three brackets of alcohol readings for the

purpose of determining, upon conviction, the minimum period of consequential disqualification to be imposed. S. 26 of the

Road Traffic Act 1961, as amended by s 6 of the Road Traffic Act 2006, provides that a person convicted of driving with

a blood alcohol reading in the bracket 36-44 microgrammes of alcohol per 100 millilitres of breath shall be disqualified from

driving for a minimum of 1 year (2 yrs for a second or subsequent offence); that a person convicted of driving with a

blood alcohol reading in the bracket 45-66 microgrammes of alcohol per 100 millilitres of breath shall be disqualified from

driving for a minimum of 2 years (4 yrs for a second or subsequent offence); and that a person convicted of driving with a

blood alcohol reading in the bracket 67 + microgrammes of alcohol per 100 millilitres of breath shall be disqualified from

driving for a minimum of 3 years (6 yrs for a second or subsequent offence). Further still, the solicitor would likely have

advised him that a failure or refusal to provide a sample would likely result in a criminal charge being preferred against him

under s.13 of the Road Traffic Act 1994 and that, if found guilty, the law would, for the purposes at least of determining

the minimum period of consequential disqualification to be imposed, treat him more harshly than a person convicted on a

first offence of having an alcohol level in their system falling into the highest of the three brackets provided for by

legislation. S.26 of the Road Traffic Act 1961, as amended by s 6 of the Road Traffic Act 2006, provides that the period

of disqualification for a person convicted under s. 13 of the Road Traffic Act 1994 shall not be less than 4 years in the

case of a first offence and not less than 6 years in the case of a second or any subsequent offence under the same

section.

Decision

This Court has reached the conclusion that Counsel for the accused is correct in his submission that Walsh v. O’Buachalla

[1991] 1 IR 56 no longer represents the law and that the current legal position is as stated in The People (D.P.P.) v Buck

[2002] 2 IR 268 and The People (D.P.P.) v O’Brien [2005] 2 IR 206. The accused in this case was in lawful detention up

until the point where, he having requested access to a Solicitor, Garda Synnott refused to accede to his request and

decided to take no steps to contact, or have someone else contact, a solicitor on the accused’s behalf, until such time

as the intoxyliser cycle that was then underway was completed. I am satisfied that Garda Synnott’s decision, although it

was a bona fide one, and not in any way a mala fide attempt to ensure that the accused was without legal advice, was

nonetheless a deliberate and conscious decision in the sense spoken of by Finlay C.J. in People (D.P.P.) v Kenny [1990] 2

IR 110. Accordingly, she unwittingly committed a deliberate and conscious violation of the accused’s constitutional right

to have access to a solicitor. This breach had the effect of rendering the accused’s detention unlawful from the moment

Garda Synnott made the decision to refuse the accused’s request.

For so long as the accused remained in unlawful detention the strict exclusionary rule as identified in Kenny’s case must

be applied, unless there were in existence at the material time extraordinary excusing circumstances. I cannot agree that

the lack of culpability of Garda Synnott in any moral sense, or that the subjective reasonableness of her actions, or as

has been urged, the prudence underlying her actions, constitute extraordinary excusing circumstances. In support of this

view I would the following passage from the judgment of Finlay C.J. in The People (D.P.P.) –v- Healy [1990] 2 IR 73:

“I reject completely the submission made on behalf of the Director of Public Prosecutions that the test to be applied

to the question of reasonable access is a subjective test in the mind of the jailer of the detained person. The test

is whether the superintendent's refusal of access was a conscious and deliberate act, as it clearly was. The fact

that he may not have appreciated that his refusal was a breach of the defendant's constitutional right is

immaterial.”

Moreover, I don’t accept the contention that Garda Synnott may not necessarily have been mistaken. While I accept that

s. 13 must be construed narrowly, that does not mean that common sense should go out the window.

Accordingly, and though some would regard it as harsh, unless or until the Supreme Court decides to ameliorate the strict

exclusionary rule as identified by them in The People (D.P.P.) v Kenny [1990] 2 IR 110, I consider that the maxim

ignorantia juris haud excusat must apply. The rationale for the application of a strict exclusionary rule is clearly set out in

the judgment of Finlay C.J. in Kenny at page 133/134:

“As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the

invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle

which is likely to provide a stronger and more effective defence and vindication of the right concerned.

To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a

constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a

manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is

not unconstitutional.

To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent,

incorporates as well a positive encouragement to those in authority over the crime prevention and detection

services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the

effect of their powers of arrest, detention, search and questioning in relation to such rights.

It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and

positive force is likely to protect constitutional rights in more instances than is a principle with negative

consequences only.

The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary

rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to

arrive at the truth and so most effectively to administer justice.

I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal

cases.

The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the

ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation

"as far as practicable to defend and vindicate the personal rights of the citizen."

I should mention in passing that this Court is aware of the very thought provoking judgment of Mr Justice Charleton in the

case of The Director of Public Prosecutions v Cash [2007] IEHC 108, in which the learned judge, while acknowledging that

Kenny’s case represents the current law, and that he must apply it, has conducted a most thorough and comprehensive

review of the historical development of the strict exclusionary rule and has urged a re-examination of it. He contends that

“a rule which remorselessly excludes evidence obtained through an illegality occurring by a mistake does not commend

itself to the proper ordering of society which is the purpose of the criminal law.” He goes on to suggest that any system

of the exclusion of improperly obtained evidence ought to be implemented on the basis of a balancing of interests, the

relevant interests being primarily those of society and of the accused, with the rights of the victim also being weighed in

the balance.

I would agree with Mr Justice Charleton that the automatic exclusion of evidence due to a mistake made in good faith

arguably represents an unjustifiable anomaly in the law and something which is inimical to the public’s interest in the

prosecution of crime. I would therefore support the learned judge’s call for a re-examination of the need for the strict

exclusionary rule some eighteen years post Kenny, particularly in the light of the changed circumstances in which the

Criminal Courts now find themselves, where the previously ubiquitous trial within trial seeking the exclusion of evidence on

the grounds of alleged Garda misconduct has become … not quite a thing of the past, that would be to overstate it, but

…very much the exception rather than the rule.

I understand that the Cash case is under appeal to the Supreme Court and I will await the outcome with considerable

interest.

I must, however, decide this case on the basis of the law as it is now.

The prosecutor in this case has argued that, notwithstanding that there may have been a breach of the accused’s

constitutional rights, the application of exclusionary rule does not arise because there is no evidence to exclude. He

contends that nothing was done in any active sense to gather or obtain evidence during the period of the breach. All that

happened was that the accused refused to provide a sample lawfully demanded of him. That refusal was merely passively

observed. The active step of making the demand had been made before the accused requested a solicitor, and was

therefore made at a time when he was in lawful detention. The only thing that happened after his detention became

unlawful was that he was passively observed not to provide the sample that had been lawfully demanded of him within a

reasonable time.

At first glance, this is an attractive argument. Developing it slightly, the Court would pose the following rhetorical

question. Could it seriously be contended that if, instead of refusing to supply a sample of his breath, the accused had

instead lashed out and kicked over the intoxilyser machine within the clear view of Garda Synnott thereby causing

damage to it, that he couldn’t be charged and prosecuted with the offence of causing criminal damage, or that if he was

so charged, that Garda Synnott could not give evidence as to what she had passively observed, simply because he

happened to be in unlawful custody at the time that he elected to commit the offence. If so, it would be indeed be

anomalous.

However, after some reflection, I have arrived at the conclusion that the situations are not fully analogous. They

certainly have a number of features in common. In both situations the evidence is acquired passively. Moreover, there is

no direct causative link in either case. In regard to that I hold the view that to suggest that the evidence against the

accused would not have been obtained “but for” the breach of the accused’s right of access to a solicitor would, in either

case, be an untenable proposition. It would amount to a suggestion that in each instance the accused was induced to

commit the offence by reason of the breach of his right to have access to a solicitor. However, the accused puts forward

a more nuanced point, namely, that he might have made a different choice or adopted a different course of action if he

had had the benefit of legal advice. Moreover, in the accused’s case there was a statutory process underway and the

entitlement of the Gardai to require the accused’s participation in that process was contingent on him being in their lawful

custody. At the point at which his detention became unlawful the entire process became tainted with illegality. The

suggestion is that on account of this the evidence acquired by Garda Synnott in passively observing the accused’s failure

to provide the sample that had been lawfully demanded of him within a reasonable time, must also be regarded as tainted

. I think there is substance in that point. Once his detention became unlawful he was entitled to be released and to leave

the Garda station forthwith. He was not obliged to remain to fulfil the demand that had been made of him. Garda

Synnott’s entitlement to insist on compliance with the demand that she had made moments before evaporated at the

moment that she refused to comply with the accused’s request to be afforded access to a solicitor, notwithstanding that

the demand was lawful at the time that it was made. It is not necessary that a causative link should exist between the

breach of rights and the evidence acquired. It matters not whether the evidence was acquired by means of some positive

action taken by the Gardai, or whether it was gathered incidentally, serendipitously or by mere passive observation.

The absolute exclusion of evidence, obtained in breach of an accused’s constitutional rights, as being fruits of the

poisoned tree, represents a judicially created remedy in fulfilment of the State’s obligation to defend and vindicate the

constitutional rights of the citizen. This principle of absolute vindication of constitutional rights was most clearly

articulated in the State (Quinn) v. Ryan [1965] IR 70 and in Trimbole v. Governor of Mountjoy Prison [1985] IR 550,

before being applied in the Kenny case in stated preference to the principle of deterrence adopted by the United States

Supreme Court in United States v. Leon (1983) 468 U.S. 897.

Finally, although the existence of a causal link between the breach of rights and the procurement of evidence does not

now need to be established, and I do not regard it as having been established, I wish to say nevertheless that I disagree

fundamentally with the submissions of the prosecutor to the effect that it was an error of law on the part of the District

Justice to hold that that the refusal by the accused may have occurred as a consequence of Garda Synnott’s refusal to

afford him access to a solicitor. It will be recalled that he characterised this as a “mere speculative possibility”. I would

adopt the view expressed by Messrs Butler and Ong in their article “Breach of the Constitutional Right of Access to a

Lawyer and the Exclusion of Evidence – The Causative Link” (1995) 5 Irish Criminal Law Journal 156 – 172, namely, that

the appropriate question was not whether a lawyer would have made a difference but rather whether a lawyer could have

made a difference. In my view the learned District Judge adopted the right approach on that question, although by reason

of the decisions in Buck and O’Brien [2005] it is now academic.

In conclusion I would answer both of the questions posed in the case stated in the affirmative.