High Court quashes District Court decision for failing to apply legal principles on reasonable access to a solicitor during breath test refusal.

Neutral Citation: [2015] IEHC 693

THE HIGH COURT

[2014 No. 979SS]

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

DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

LORRAINE O’SULLIVAN

RESPONDENT

JUDGMENT of Mr. Justice David Keane delivered on the 6th November 2015

Introduction

1. This is an appeal by way of case stated from the District Court, pursuant to the provisions of s. 2 of the Summary Jurisdiction Act

1857, as extended by the terms of s. 51 of the Courts (Supplemental Provisions) Act 1961. District Judge Bryan Smyth stated the

case at the request of the Director of Public Prosecutions (“the appellant”).

The Case Stated

2. The learned District Judge has set out the facts and grounds of the determination under appeal as follows:

“(i) Ms Lorraine O’Sullivan (the accused herein) [and the respondent to the present appeal (“the respondent”)] appeared

before me at Court 8, Criminal Courts of Justice, on the 8th January 2014 on foot of charge sheet 13739012 alleging that

she did on the 4/5/2013 at Ballyfermot Garda Station, being a person arrested under s. 4(8) of the Road Traffic Act 2010,

having been required by Garda Anne Irwin, a member of the Garda Síochána, pursuant to s. 12(1)(a) of the Road Traffic

Act 2010, as amended by s. 9(d) of the Road Traffic (No. 2) Act 2011, to provide, by exhaling into an apparatus for

determining the concentration of alcohol in the breath, two specimens of her breath, did fail to comply immediately with

the said requirement of the said member of An Garda Síochána, contrary to s. 12(1)(a), (2) and (4) of the Road Traffic

Act 2010, as amended.

(ii) Treasa Howell Solicitors represented the [respondent]. Counsel was instructed to appear on behalf of the

[respondent]. Michael Durkan, Solicitor, instructed by the Chief Prosecution Solicitor, represented the [appellant].

(iii) The facts as proved or admitted or agreed and as found by me are as follows:-

a. Garda John Noonan gave evidence as follows, which I accepted. He is stationed at Clondalkin Garda Station, Dublin 22.

On 3 May, 2013, he took up duty as observed in the patrol car. At approximately 4:40 AM on the morning of the 4th May,

2013, he was driving on St. Cuthbert’s Road, Clondalkin, Dublin 22, when he observed the relevant vehicle, parked at the

bus stop with its lights on and the engine running. As the patrol car went to pull up alongside, the driver attempted to

drive off before again coming to a complete stop, when the Garda requested her to do so. The Garda then requested the

driver to roll down the driver’s window, which she seemed to have difficulty with. On speaking with the driver, the Garda

asked if she was okay. At first, she did not reply, before repeating three times that she was okay. During this time, the

Garda noted that her speech was very slurred and her eyes were glazed over. When the Garda asked her name again, she

just repeated that she was okay before rolling up the window and again attempting to drive off, before being instructed

again to stop. Garda Noonan then cautioned the driver, who gave her details as Lorraine O’Sullivan, the [respondent]. The

Garda formed the relevant opinion and arrested the [respondent] for drunk driving.

b. The Garda arrested the [respondent] at 4.45 AM under s. 4(8) of the Road Traffic Act 2010. He then placed her in the

patrol car and escorted her to Ballyfermot Garda Station, where they arrived at 5.05 AM. At this stage, the Garda said he

then began a 20 minute period of observation to ensure that the [respondent] had nil by mouth prior to the administration

of the Evidenzer procedure. At 5:15 AM, Garda Annie Irwin introduced herself to the [respondent] as the Evidenzer Garda.

At 5:25 AM, Garda Irwin and Garda Noonan escorted the accused to the Evidenzer room. Here, Garda Noonan observed

Garda Irwin carry out the Evidenzer procedure and he observed the accused failing to comply with Garda Irwin’s

requirement. The accused was then later charged with the offence of failing to provide a specimen set out above.

c. Garda Noonan was then cross-examined and during cross-examination, he said he was seated in the rear of the patrol

car beside the accused on the journey to the Garda Station. He accepted that the accused was handcuffed. He said that

he closely observed her during this period. He was asked if there was any possibility that she may have had a drink, taken

medication or belched while in the backseat of the car. [H]e stated she did not. He was asked if he had just spent 20

minutes in a car with the accused watching her, how could he possibly justify watching her for another 20 minutes when

they got to the Garda station. He responded it was his standard procedure to begin the observation period at the Garda

station. The Garda was then re-examined on this point and asked if it was dark in the patrol car on the journey to the

station. The Garda confirmed that it was. He also said he could not be 100% sure that the accused had nil by mouth on

the journey to the station.

d. It was submitted then on behalf of the defence that there was no justification for the 20 minute period of observation

in Ballyfermot Garda Station. Mr Durkan, for the prosecution, said the 20 minute period in the Garda Station was justified

as the interior of the station was better lit than a patrol car and there were no distractions such as there would be

outside the window of a moving patrol car. Mr Durkan also submitted that the prosecution was entirely justified in

conducting the 20 minute observation period in the controlled environment at the Garda Station and that he should

therefore be allowed to continue with his evidence and to call the Evidenzer Garda. Mr Durkan made no reference to the

decision in Director of Public Prosecutions v. McNiece [2003] 2 I.R. 614.

e. The Evidenzer Garda was not called at this stage as I decided that I was in agreement with the defence that the

detention of the accused for 20 minutes after arrival at the Garda station was not justified. At this stage, I then acceded

to the defence application for a direction on the basis that the detention of the [respondent] at the Garda station was

invalid, without hearing any further evidence.

(iv) The prosecutor now seeks to appeal by way of case stated. The opinion of the High Court is sought on the question

as to;

(a) whether I was correct in law in holding that the detention of the [respondent] for 20 minutes observation after her

arrival at Ballyfermot Garda Station was invalid;

(b) whether I was correct in law in dismissing the case against the accused on that basis.”

The McNiece decision

3. It is an especially noteworthy feature of the grounds of the determination made by the learned District Judge in this case, as set

out in the case stated, that no reference was made in argument before him to the decision in Director of Public Prosecutions v.

McNiece [2003] 2 I.R. 614.

4. McNiece involved a consultative case stated to the Supreme Court in the course of a Circuit Court appeal against a District Court

conviction for an offence of failing to provide two specimens of breath, subsequent to arrest on suspicion of driving while intoxicated,

contrary to s. 13(2) of the Road Traffic Act 1994.

5. Two questions were posed for the consideration of the Supreme Court, the second of which is more pertinent for the purpose of

the present judgment. That question was, in circumstances where the accused had been in the company of the arresting garda from

the time his vehicle came to a halt to the time of his arrival at the Garda station, whether it was lawful for another garda to detain

the accused for a period of twenty minutes at the Garda station in order to observe him prior to requiring him to provide the relevant

breath samples.

6. In giving judgment on that question, Murray J. (Keane C.J. and Denham, McGuinness and Hardiman JJ. concurring) stated (at pp.

624-5 of the report):

“With regard to the second question, the evidence before the Circuit Court Judge was that the accused was in the

company of and under the observation of [the arresting garda] from the time when the garda first encountered him at

9.00 p.m. until his arrival at the garda station at 9.21 p.m. [The arresting garda], I would recall, drove the accused to the

garda station in the garda patrol car. In his evidence he stated that during the period between first observing the

accused drive and arriving at the garda station the accused did not consume anything. On re-examination he stated that

when driving back to the station he was concentrating on the road.

Counsel for the accused has submitted that since the accused was under garda observation for a period of at least

twenty minutes before arriving at the garda station and being introduced to [the intoxiliser garda], during which he had

not taken anything orally, it was unlawful for the accused to have his period of detention prolonged by a further twenty

minutes of observation. It was submitted that [the intoxiliser garda] could have made the appropriate inquiries of [the

arresting garda] for the purpose of confirming whether the latter could confirm that the accused had not taken anything

and thus obviate the necessity of a further twenty minute period of observation.

In my view, this argument is not well founded. What is involved here is the lawful administration of a precise test by the

use of an intoxilyser to determine the level of alcohol in an arrested person’s breath. The test has potentially important

consequences for the arrested person and for the public interest which is concerned with the obtaining of reliable

evidence of the commission of an offence in appropriate cases. Once the necessity of an observation period of twenty

minutes is objectively justified then the State must have a reasonable discretion as to the manner and circumstance in

which it can be effectively carried out. It seems to me entirely rational and logical that the State would have

administrative arrangements which placed on a designated person, in this case the trained operator of the machine, the

responsibility for ensuring that the appropriate conditions existed and that the proper procedures were followed for the

effective administration of such a precise test at the time when it was being given. The risks and potential frailties of the

State relying on such precise observations of gardaí in the fluidity of arrest situations or while driving a patrol car as the

basis on which to carry out a valid test and to establish it as correct seem to me so self evident as to require little

comment particularly when such necessary observation for the purposes of such a test can be better and more reliably

carried out in a controlled situation under the eyes of a garda member designated for that purpose. Unless there is that

kind of controlled observation there would always be the risk that an accused could claim to have surreptitiously taken

something while the garda member was momentarily distracted.

In these circumstances, I do not see any basis for considering that the decision of [the intoxiliser garda] to observe the

accused for twenty minutes prior to administrating the breath test could in any way have rendered unlawful the custody

of the accused during that time even if [the arresting guard] was in a position to give satisfactory evidence that the

accused had not taken anything orally from the time he first observed him to the time when he arrived at the garda

station.”

7. Unsurprisingly on the basis of the foregoing analysis, and while acknowledging that it was a matter for the learned Circuit Court

Judge to decide finally on the facts established beyond a reasonable doubt by reference to the evidence presented, the Supreme

Court answered the relevant question in the affirmative.

The issue of law

8. As identified in the case stated, the issues of law upon which this Court is invited to express an opinion are whether the learned

District Judge in this case “was correct in law in holding that the detention of [the respondent] for twenty minutes observation after

her arrival in [the garda station] was invalid” and whether, in consequence, it was correct in law to dismiss the charge on that basis.

The facts as found

9. In various rhetorical formulations, Counsel for the respondent urged this Court to accept that the acquittal of the respondent

implies that, in considering the evidence, the learned District Judge must have chosen to rely upon Garda Noonan’s evidence under

cross-examination unqualified by his evidence in re-examination or, differently put, that the learned District Judge must have chosen

to prefer the former portion of Garda Noonan’s testimony to the latter. While there can be no doubt that it would have been open to

the learned District Judge to approach the evidence in that way, if he had considered it appropriate to do so, I must address the

terms of the case as stated; viz. that the facts as found were those established through the evidence of Garda Noonan, which the

learned District Judge confirms he accepted, without any identified limitation or reservation.

What is lawful detention?

10. In criminal proceedings the onus is on the prosecution to establish beyond reasonable doubt that, where an accused has been

held in custody, his or her detention was in accordance with law at all material times. The Supreme Court (per Murray J.) pointed this

out in DPP v. Finn [2003] 1 I.R. 372 at 378 and reiterated it in DPP v. McNiece [2003] 3 I.R. 614 (at 621).

11. In the case of a person deprived of his or her liberty for the purpose of taking a sample of the person’s breath for analysis in

connection with a possible offence of driving a vehicle while intoxicated, it is the duty of the arresting gardaí to take appropriate

steps to make the statutory requirement of the person concerned to provide specimens of his or her breath “with reasonable

expedition”, within a “reasonable” time or without “unreasonable delay”. The foregoing proposition also derives from the judgment of

Murray J. in Finn (at 378), applying venerable principles most famously articulated by Hanna J. in Dunne v. Clinton [1930] I.R. 366 and

subsequently applied in The People v. Walsh [1980] I.R. 294. As the judgment of Hardiman J. in Finn (at 384) confirms, compliance

with the relevant common law or statutory requirement must be affirmatively proved, rather than being left to be inferred.

What is a reasonable time?

12. In Finn, Murray J. stated (at p. 378):

“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 minutes simpliciter in dealing with an arrested

person is the kind of delay which could be treated as rendering an otherwise lawful custody, unlawful, at least in the

absence of some other special circumstances.”

13. Like McNiece, Finn was a consultative case stated by the Circuit Court to the Supreme Court. In Finn, the relevant fact as stated

was that, upon arrival at the garda station, the arrested person had been placed in a waiting room under observation for 27 minutes,

in light of unidentified Garda Síochána guidelines which stipulated that persons arrested on suspicion of driving while intoxicated

should be observed for 20 minutes prior to the administration of the breath test in order to ensure that they did not ingest anything

orally during that period.

14. Noting that the onus was 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, Murray J. observed that this must be done through the appropriate evidence of a

competent witness, before continuing (at p. 380):

“I do not wish to speculate unduly as to what that evidence might or might not be in this case but it may involve

establishing that, for example, such a procedure is necessary in order to comply with manufacturers’ instructions

concerning the use of an apparatus or accords with a generally recognised and established practice.... Indeed the need

to follow procedural steps in such a process may, as a result of a series of cases, become so notorious as to become the

subject of judicial knowledge.”

15. Since no such evidence had been given in the case then at hand, Murray J. concluded that it fell to be decided on its own

particular facts and, on those facts, it had not been established that the defendant was in lawful detention at the material time.

16. Having reached the same conclusion on essentially the same basis, Hardiman J. added (at 386-9):

“This conclusion does not mean that in another case where the same offence is alleged, there might not be sufficient

evidence on this point. It is impossible to speculate as to what this might be, because we have no information at all as to

the actual purpose of the delay. But the fact that the evidence in this case was insufficient in this case by no means

excludes the possibility of there being sufficient evidence tendered by the prosecution in another case under the same

section. This decision is on the facts of the present case

I am therefore far from holding that, in another case, there might not be evidence which would clearly demonstrate the

reasonableness of a 20 minute interval between arrival at the garda station and the administration of the test.”

17. It is, I think, fair to say that, in McNiece, very extensive evidence was given concerning the necessity of a 20 minute observation

period prior to the administration of the breath test. The member of Garda Síochána who administered the test gave evidence of his

qualification in the operation of the testing apparatus in question, comprising a three day training course under the auspices of the

Medical Bureau of Road Safety and the Garda College, and produced the training manual used on that course. The chief analyst of the

Medical Bureau of Road Safety gave evidence that the 20 minute observation period in question conforms with international scientific

best practice in the operation of such apparutus. Its purpose is to eliminate the risk of an erroneous or misleading test result due to

the presence of alcohol in the mouth of the test subject whether by ingestion or regurgitation at the time when the test is taken.

18. Curran v. Foley [2006] IEHC 11 was an appeal by way of case stated from the District Court to the High Court against an

acquittal on a charge of drunk driving. The central issue that arose in that case was whether the detention of a suspected person

during the 20 minute observation period prior to the use of the testing apparatus was separate from, or integral to, the general

detention period consequent upon the arrest of that person for the purpose of administering the test. The learned District Judge had

dismissed the charge in that case, having taken the view that the detention of a suspect during the 20 minute observation period is a

separate detention, requiring the administration of a separate warning or caution. Since no such separate warning or caution had

been given to the accused person in that case, in the view of the learned District Judge his detention was rendered unlawful.

19. In giving judgment on the appeal, O’Neill J. stated:

“[I]n my view no additional caution or warning is required at the commencement of that twenty minute period so as to

render it lawful. The information given and cautions given at the time of arrest and subsequently by the member in charge

when the alleged offender is brought to the Garda station, if sufficient to render lawful the overall detention will also be

sufficient to render lawful the detention during the period of twenty minutes observation.

In this case the learned District Judge took judicial notice of the necessity for the twenty minute period of observation for

the purposes of carrying out a valid test.

This was a development which was anticipated by Murray C.J. in the D.P.P. v. Finn where he says at p. 380:

‘…Indeed the need to follow procedural steps in such a process may, as a result of a series of cases, become so notorious

as to become the subject of judicial knowledge.’

The learned District Judge having taken judicial notice of the need for the twenty minute observation period and being in

my view lawfully entitled to so do, it necessarily follows in my opinion, that in this case the detention was justified, and

therefore in my view, has to be regarded as part of the detention initiated by the arrest. Where the period is justified it

would in my opinion, be wholly artificial to treat this period of detention, as apart from and independent of the overall

detention initiated by the arrest pursuant to s. 49(8).”

20. The judgment of O’Neill J. in Curran v. Foley makes plain that, within 3 years of the decisions of the Supreme Court in Finn and

McNiece, the courts were quite properly in a position to take judicial notice of the necessity for a 20 minute observation period prior

to the conduct of a valid test.

The principles governing this appeal

21. As Ó Caoimh J. observed in DPP v. Noonan (High Court, Unreported, 16 December 2002), also an appeal by way of case stated,

the principles governing such appeals were set out by Costello P. in Proes v. Revenue Commissioners [1998] 4 I.R. 174 (at 175) as

follows:

“(i) findings of primary fact by the trial judge should not be disturbed unless there is no evidence to support them,

(ii) inferences from primary facts are mixed questions of fact and law,

(iii) if the trial judge adopted a wrong view of the law, his conclusions should be set aside,

(iv) if the trial judge’s conclusions are not based on a mistaken view of the law, they should only be set aside if he drew

inferences which no reasonable judge could draw.”

22. In Fitzgerald v. Director of Public Prosecutions [2003] 3 I.R. 247, the Supreme Court (per Hardiman J.) offered the following

additional guidance (at 269):

“A useful method of approaching the question of whether a particular issue, in a criminal case, is a matter of fact or law,

is to ask whether, if the case were being tried by judge and jury, the issue would be one for the judge or for the jury.”

23. In DPP (Breen) v. Valentine [2009] 4 I.R. 33, Birmingham J. applied the method suggested by the Supreme Court in Fitzgerald,

concluding (at p. 36 of the report) that had the summary trial in that case been conducted upon indictment instead, the issue

presented would have been a matter for the judge, rather than the jury, and, hence, was clearly an issue of law. Birmingham J. went

on to state (at pp. 36-37 of the report) that he was reinforced in the conclusion that he had reached by the fact that the issue

concerned was raised with the District Judge in the guise of an application for a direction at the conclusion of the prosecution case;

the point, of course, being that, in a trial on indictment, it is a matter for the trial judge to direct the jury to acquit when appropriate

to do so whether of his or her own volition or on application on behalf of the accused.

The arguments

24. The respondent submits that each of the questions presented should be answered in the affirmative. The respondent’s argument

in support of that conclusion is, essentially, twofold: first, that the finding that the respondent’s detention during the 20 minute

observation period in the garda station was invalid is a finding of fact by the learned District Judge; and second, that the relevant

finding cannot be disturbed because there was some evidence to support it in the specific circumstances facts of this case.

25. I am unable to accept that submission for several reasons.

26. In my view, the primary facts found by the learned District Judge were those established through the evidence of Garda Noonan,

whose evidence the learned District Judge has stated he accepted. Those facts include the following: that Garda Noonan arrested

the respondent at 4.45 a.m., placed her in the patrol car, and escorted her to the Garda station where they arrived at 5.05 a.m; that

Garda Noonan was seated in the rear of the patrol car beside the accused on the journey to the Garda station; that Garda Noonan

closely observed the respondent who did not drink, take medication, or belch while in the backseat of the car; that it was dark in the

patrol car on the journey to the Garda station and Garda Noonan could not be 100% sure that the respondent had nil by mouth during

that journey; and, finally, that upon arrival at the Garda station Garda Noonan began a 20 minute observation period of the

respondent, as was his own standard procedure, to ensure that the respondent ingested nil by mouth prior to the administration of

the relevant test.

27. The finding of the learned District Judge that the 20 minute observation period at the Garda station was unjustified, and that the

detention of the respondent during that period was, in consequence, invalid, was an inference drawn from those primary facts and

was thus a finding upon a mixed question of fact and law

28. I draw support for that conclusion from a consideration of the answer to the question suggested by Hardiman J. in Fitzgerald, as

that question applies to the circumstances of this case. That is to say, if the respondent in this case had been tried upon indictment,

it seems clear to me that the issue presented would have been one for the judge, rather than the jury. The issue was whether the

evidence derived from the detention of the respondent should be excluded on the basis that her detention was unlawful. Such issues

are classically a matter for the trial judge to determine in the absence of the jury, generally in the context of a voir dire. Moreover,

since the evidence obtained during the respondent’s detention formed an essential plank of the prosecution case, the issue of the

lawfulness of that detention became the subject of an application for the dismissal of the charge at the conclusion of the prosecution

evidence on that issue, though prior to the conclusion of the prosecution case.

29. In being invited to accept the argument that it was appropriate to draw the inference that the 20 minute observation period at

the Garda station was unjustified, and that the detention of the respondent during that period was, in consequence, invalid, the

learned District Judge was not informed that the Supreme Court had rejected a similar, if not identical, argument in McNiece, nor was

he apprised of the applicable principles identified by the Supreme Court (per Murray J.) in that case.

30. I pause here to note that there is no suggestion that the learned District Judge proceeded on the basis that no objective

justification had been established for any observation period of 20 minutes prior to the administration of the relevant test. After all,

the necessity for that procedure is a matter that he would have been entitled to take judicial notice of on the authority of the

decision in Curran v. Foley. Rather, the terms of the case stated suggest that the argument urged on the learned District Judge (and

accepted by him) was that it was unreasonable and, therefore, unlawful for Garda Noonan to observe the respondent in the garda

station for 20 minutes, in circumstances where she had been under observation by him earlier for an equivalent period while she was

being conveyed by patrol car to the garda station in his custody.

31. Specifically, the learned District Judge was permitted to rule on the respondent’s submission without consideration of the principle

that, once the necessity of a 20 minute observation period has been established or accepted, then the State must have a reasonable

discretion as to the manner and circumstance in which it can be effectively carried out. Further, the learned District Judge was not

made aware of the following dictum of Murray J. (at p. 625 of the report) in McNiece (already set out earlier in this judgment but

which bears repetition in the present context):

“The risks and potential frailties of the State relying on such precise observations of gardaí in the fluidity of arrest

situations or while driving a patrol car as the basis on which to carry out a valid test and to establish it as correct seem

to me so self evident as to require little comment particularly when such necessary observation for the purposes of such

a test can be better and more reliably carried out in a controlled situation under the eyes of a garda member designated

for that purpose. Unless there is that kind of controlled observation there would always be the risk that an accused could

claim to have surreptitiously taken something while the garda member was momentarily distracted.

In these circumstances, I do not see any basis for considering that the decision of [the intoxiliser garda] to observe the

accused for twenty minutes prior to administrating the breath test could in any way have rendered unlawful the custody

of the accused during that time even if [the arresting guard] was in a position to give satisfactory evidence that the

accused had not taken anything orally from the time he first observed him to the time when he arrived at the garda

station.”

32. In the course of argument before me (although not, of course, in argument before the learned District Judge), Counsel for the

respondent submitted that the primary facts of the present case take it outside the scope of the principles I have just quoted from

the decision of the Supreme Court in McNiece. Specifically, it was pointed out that Garda Noonan was not the driver of the patrol car

that conveyed the respondent to the Garda station; that he was not the person designated to operate the relevant testing

apparatus on the occasion in question and, indeed, was not in any event trained to do so; and that he had not been in any sense

formally designated to carry out the observation of the respondent.

33. Having carefully considered that submission, I find myself unable to accept it. First, the Supreme Court has made clear that the

risks and potential frailties of purporting to rely on the precise observations of gardaí in the fluidity of an arrest situation are so self

evident as not to require comment. Second, and following from the preceding principle, it is equally self-evident that the necessary

observation can be better and more reliably carried out in the controlled environment of a Garda station. Third, while it would no

doubt be better still if that observation could be carried out by a person formally designated for that purpose, in my view it does not

follow that the failure to so designate a member of An Garda Síochána makes the conduct of that observation by an undesignated

member unnecessary or unreasonable (still less does it render the detention of a suspected person during that period unlawful).

Fourth, no basis has been put forward for the suggestion that it is scientifically, or otherwise, essential that the person who conducts

the required observation must be the person designated to administer the relevant test thereafter or, for that matter, a person

trained to administer that test. Finally, I cannot overlook the Supreme Court’s dictum that, once it is accepted that a 20 minute

observation period is necessary prior to the administration of the relevant test, it is clear that the State must have a reasonable

discretion as to the manner and circumstances in which that test can be effectively carried out.

34. Counsel for the respondent relied upon one further significant argument in support of his contention that the questions posed by

the learned District Judge should be answered in the affirmative. It is that the principles governing appeals of this type have been

fundamentally altered or recast by the decision of the Supreme Court in the case of DPP (Lavelle) v. McCrea [2010] IESC 60. That

case was an appeal from a decision of this Court (per Edwards J.), rejecting an appeal by way of case stated brought by the Director

of Public Prosecutions against a decision of the District Court dismissing a charge of precisely the sort at issue in this case. In

McCrea, the learned District Judge had acceded to an application for a direction on the basis that the accused had been denied his

right of reasonable access to a solicitor, having requested to speak to one in direct response to the formal requirement made of him

to provide the relevant specimens of his breath. The learned District Judge had made a finding that it was not unreasonable that a

person confronted with a demand in statutory, that is in technical legal, terms should then seek a solicitor. Giving judgment for the

Court, Hardiman J. stated:

“There is no need, in my opinion, for this Court to scrutinise that finding, or any other finding of the learned District Judge

other than to enquire whether these findings were such as were open to her on the evidence. That is, the question of

whether her findings were findings which this Court would make on the same evidence simply does not arise.”

35. Counsel for the respondent submits that I should apply the foregoing test in substitution for the principles of review set out by

Costello P. in Proes and elaborated upon by Hardiman J. in Fitzgerald, supra. However, it seems to me that the decision in McCrea falls

to be considered very much by reference to its own particular facts. There was no suggestion, much less acknowledgment, in that

case that the learned District Judge had not considered (or been given an opportunity to consider) the applicable legal principles

governing reasonable access to a solicitor. Rather, Hardiman J. appears to have concluded that, in purporting to suggest an

unspecified error of law on the part of the learned District Judge in relation to what constituted reasonable access to a solicitor in

that regard, the Director was ignoring the uncomfortable fact that the gardaí themselves had informed the detained person that he

had the right to consult a solicitor at any time, while mounting the argument that it was not reasonable to expect the gardaí to

provide such access at the particular point in the process when the detained person requested it. Differently put, it seems to me

that, in McCrea, far from altering the established principle that the question of the appropriate inference or inferences to be drawn

from primary facts is a mixed question of fact and law, the Supreme Court was simply acknowledging that, given the particular

circumstances of that case, the mixture concerned was overwhelmingly, if not entirely, comprised of matters of fact.

36. Having carefully considered each of the arguments raised, I have come to the conclusion therefore that, in drawing the relevant

inference, the learned District Judge erred in law in failing to consider or apply the legal principles that I have just described. I hasten

to add that the learned District Judge did so through no fault of his own, in circumstances where he was not apprised of the relevant

authority by either side in the course of the relevant argument.

Conclusion

37. For the reasons given, I would answer each of the questions posed by the learned District Judge in the negative.