Court of Appeal dismisses appeal where toxicology evidence was admitted despite privacy concerns due to public interest in serious crime investigation.

THE COURT OF APPEAL

[2013 No. 43]

Birmingham J.

Sheehan J.

Edwards J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MICHAEL HARTY

APPELLANT

JUDGMENT of Mr. Justice Sheehan delivered on the 10th day of May 2016.

1. This is an appeal against conviction.

2. On the 25th January, 2013, the appellant was convicted of dangerous driving causing the death of a married couple, Maurice and

Margaret Hartnett, at Ard Tomin, Askeaton, Co. Limerick on the 29th July, 2009.

3. The appellant was subsequently sentenced to five years imprisonment and disqualified from driving for 30 years.

4. The appellant relies on a single ground of appeal, namely, that the learned trial judge erred in law and in principle in permitting the

prosecution to adduce evidence before the jury of, and concerning, a biochemistry report. The appellant contends that this evidence

was received in circumstances which were in breach of his constitutional right to privacy. In the course of oral argument, counsel on

behalf of the appellant contended that even if there was an entitlement by the gardaí to receive the toxicology report from the

hospital, the means by which such a report was to be received by the gardaí required the intervention of some form of judicial

authority akin to a judicial search warrant.

5. The Court delivered an ex tempore judgment on the 11th May, 2015, in which it rejected the appellant’s ground of appeal and

dismissed the appeal against conviction. The Court said at the time that it would later set out more fully its reason for holding that

the claimed right to privacy in this case was subject to the requirements of the common good and public order, namely, in this case

the requirement that a suspected serious crime be properly investigated.

6. In order to consider further this ground, it is necessary to set out the background to the offence, the relevant evidence and the

judge’s ruling on the matter.

7. The prosecution case was that on the 29th July, 2009, Mr. Hartnett, the deceased man, had attended at the house of Kitty Walsh

at Askeaton, Co. Limerick. He had commenced tiling work at 9.00 am in the morning and finished work at about 5.30 pm that evening.

Following this, he collected his wife, who was visiting in the locality, and he drove his Volkswagen caddy van in the direction of

Rathkeale. The late Mr. Hartnett was aged 62, and his wife was aged 60. Both were pronounced dead on the evening of the collision.

The collision occurred at an area which was governed by an 80 kmph speed limit. The approach to the scene of the collision was

covered by signs indicating the presence of dangerous bends. The appellant was driving a Rav Jeep, and his vehicle had emerged from

a left hand bend. The Volkswagen Caddy was approaching that bend. At the point of impact, each lane had a width of 2.7 meters.

There was no hard shoulder. A gouge mark was seen on what was contended to be the correct side of the road for Mr. Hartnett’s

vehicle. The gouge mark was 0.8 mtrs. from the centre line of the road on Mr. Hartnett’s side.

8. At the point of impact, there was a continuous white line. The prosecution was unable to adduce eyewitness testimony in respect

of the collision. The prosecution case was founded on two strands of evidence. The first was the evidence of forensic examination at

the scene of the collision, which the prosecution relied on to make the case that the collision occurred on the late Mr. Hartnett’s

correct side of the road.

9. The second strand of evidence relied on by the prosecution was the contention that the appellant’s capacity to drive was

impaired, owing to the fact that he had consumed intoxicating liquor in the lead up to the collision.

10. Evidence of the consumption of alcohol by the appellant came from three sources. Paramedics who attended the appellant and his

passenger at the scene of the accident gave evidence of their observations. Further, it was alleged that the appellant had consumed

drink in two licensed premises in Co. Limerick on the afternoon of the 29th July, 2009. The prosecution proved in evidence the

concentration of alcohol in the sample of the appellant’s blood which was taken from him at Limerick University Hospital at 8.15 pm on

the evening of the collision. A blood sample was taken from the appellant by the nursing staff who were attending on him.

11. The appellant did not give evidence at his trial. A Mr. O’Keeffe, Consulting Engineer, was the sole witness called on behalf of the

appellant. When interviewed by members of An Garda Síochána, the appellant stated that he did not remember the collision and

further that he had no memory in respect of his movements on the day of the accident.

12. Donal O’Donnell, a paramedic, gave evidence to the effect that when he was transferring the appellant from the scene of the

accident to the back of an ambulance he noticed that the appellant had a strong smell of alcohol.

13. Another witness, a Mr. Brian O’Grady, who knew the appellant, gave evidence to the effect that he had seen him in Quaid’s Bar in

Co. Limerick at about 4.00 pm that afternoon accompanied by another person, and he recollected that the appellant had ordered two

bottles of beer. The licensee of Quaid’s Bar also gave evidence stating that the appellant and a companion had ordered and consumed

a bottle of beer each and that when he observed the appellant and his companion, they were both cold stone sober.

14. A Mr. Liam O'Sullivan, who was a barman at another licensed premises in Adare, saw the appellant and another man in the public

house and stated that they had roughly five or six pints each.

15. It was established that Mr. Maurice Hartnett, the other driver, was sober and had no alcohol in his system.

16. The trial judge heard evidence concerning the question of the admissibility of the analysis carried out at the hospital of the

appellant’s blood. A Garda Aidan Haddock of Askeaton garda station had attended at the hospital and had asked the doctor if blood

could be taken from the appellant, but he was told it was not possible to comply with this request owing to the appellant’s medical

condition at the time.

17. On the 3rd September, 2009, Garda Cathy Healy called to the home of the appellant, and the appellant signed a consent form

stating as follows:-

“I hereby consent to the Garda Síochána Askeaton garda station, Co. Limerick, obtaining from the Mid Western Health

Board a medical report on the injuries sustained by me on the 29th July, 2009, at Ard Tomin, Askeaton.”

18. The prosecution received a medical report dated the 14th September, 2009, in respect of the appellant from Dr. Garrett Quinn,

consultant in emergency medicine at the hospital.

19. Garda Healy spoke with Mr. Kevin O’Connell, the laboratory manager at the hospital, and asked for a copy of the results of any

tests carried out on any blood samples of the appellant. Mr. O’Connell advised Garda Healy that she would have to forward a copy of

the appellant’s consent. Garda Healy faxed to the laboratory manager a copy of the document which the appellant had signed.

20. Towards late October, the results of the analysis of the appellant’s blood were forwarded to Garda Healy who then took

statements from the nurse Terry McAuliffe, being the person who took the blood sample, and from a Moira Barry, a medical scientist in

the Bio-Chemistry Department. A Dr. Ned Barrett, a clinical bio-chemist, also made a statement. Those statements were then placed

in the book of evidence.

21. In cross examination Garda Healy stated that she was looking for the entirety of Mr. Harty’s medical records pertinent to his stay

in the hospital. In cross examination the following exchange took place:-

“Q. Mr. McInerney: That's exhibit D in the issue. Now, the sequence of events then is that you were looking for every

scrap of paper that might relate to Mr. Harty's stay at the Mid-Western Regional Hospital. You sent a letter containing

the consent form, that's now an exhibit in the issue. And the hospital responded by sending you a medical report from Dr.

Garrett Quinn?

A. That's correct.

Q. So that's what you received with regard to your request on foot of the consent. Now did you have any further contact

with Mr. Harty in relation to his medical records?

A. No, I did not.

Q. Did you endeavour to approach Mr. Harty at any stage subsequent to the receipt of Dr. Quinn's report, to discuss with

him his medical records?

A. No, I did not.

Q. So I take it you would then agree with me that Mr. Harty was, insofar as you were aware, blissfully unaware that you

were having these discussions with Mr. Kevin O'Connell the laboratory manager, and/or were exchanging correspondence

and/or faxes between the regional hospital, the Mid-Western Regional Hospital and yourself?

A. Yes.

Q. Now, the position is that you when you met with Mr. Harty for the purpose, you say, of discussing -- of obtaining his

consent, you produced a document, which is also an exhibit in the issue, it's exhibit A, which has bold type, "To whom it's

concerned", and it is in bold print, title: "Consent form for written medical report", that correct?

A. Yes.

Q. And when Dr. Quinn was the one who responded to your letter; isn't that correct?

A. That's correct.

Q. When Dr. Quinn responded to the letter his response is headed "medical report"?

A. That's correct.

Q. So the consent form says medical report. His response says medical report. Now, I take it your understanding of this

document was that it enabled you to obtain all and every document that the hospital might have?

A. Yes.

Q. I see. So that was the basis upon which you were operating in the context of engaging with the hospital?

A. Yes.

Q. I see. Now, did you make any notes in relation to your conversation with Mr. Michael Harty surrounding the signing of

this consent?

A. No. I just asked him for his consent. He granted his consent, and he signed the standard form which we give to

anybody if we're looking for a medical report.

Q. When you're looking for he signed the standard form that you would give to anybody if you're looking for a medical

report on him?

A. Yes, anybody that's involved in an assault or an accident.

Q. Anybody that's involved in an assault or an accident. So, for example, as I understand it correct me if I'm wrong now,

because I can often be - but if somebody if we just to the general for the moment, if somebody happened to be in

Askeaton and they were coming out of a shop and they were assaulted by another person?

A. Yes.

Q. -- and suffered injuries, and there was a subsequent prosecution in the District Court for section 3 assault?

A. Yes.

Q. -- it would be a situation where the guards often go to the doctor who treated the person, obtain a medical report

which says the person suffered a cut lip and a broken tooth and a bruising to the eye or whatever, and that medical

report is then handed in to the learned district judge in the District Court in the course of that prosecution, rather than

bringing the doctor to court; isn't that right?

A. Yes. And it would also be used to decide the severity of the charge.

Q. Exactly. Whether it's just a simple section 2 assault or a section 3 assault as the case may be?

A. Exactly.

Q. And I think there's the report is handed in and there's a provision in the Non-Fatal Offences against the Person Act

dealing with reports in relation to such cases; isn't that right?

A. That's correct.

Q. I think you're familiar with that. And that's the form this is a standard form that is used in such cases?”

22. Garda Healy acknowledged that she had not advised Mr. Harty that the material in question might be used against

him. She had made an entry in her garda notebook to this effect. Garda Healy stated that she was not aware at the time

that she should have obtained a further consent.

23. The ruling of the trial judge on the issue of the admissibility of the blood analysis is set out at pp. 76 and 77 of the transcript of

Day 4 of the trial as follows:-

“Well, the issue in this case is whether or not the biochemistry report and the other documentation that's been that

surrounds it whether that material is admissible. Now, the basis of the challenge to the admissibility of these documents is

that they were taken in breach of the accused man's constitutional right to privacy and perhaps also to medical

confidentiality and that the consent was he signed a consent which did not relate to precisely the correct document. It

related to only one medical report and was given without being cautioned, as was necessary, and that the material was

obtained without a court order and/or without the consent of the accused. Now, it's common case that there is a right to

privacy. There is a constitutional right to privacy, there is a constitutional right to medical confidentiality and it is

common case as well that this is subject this is not an absolute right and may be qualified, and one of the qualifications is

that, as has been set out in a number of authorities which have been opened, that the interests of an accused person is

-- and in particular in protecting the confidentiality of that person's medical data, may be outweighed by the interests in

the investigation and prosecution of crime. This is a right that has been referred to in a number of authorities which were

opened, DPP v. Hegarty [2009] 1 IR, PM v. District Justice Malone, the case of [2002] reports, the European Court of

Human Rights in which it's specifically set out in the case of Z v. Finland, a case of 1997, and reference has also been

made to specific provisions to this effect in the Data Protection Act of 1988 and 2003. Now, in my view, clearly in this

case this qualification applies. The constitutional right to privacy and to medical confidentiality is subject to the right of

the gardaí to investigate and to prosecute crime and therefore it is a qualification that applies here, and therefore it is a

right, being so qualified, the gardaí cannot have been in violation of it.”

The learned trial judge continued in the following terms:-

“The gardaí have a duty to investigation crime and to gather evidence and they did it in this case. It was not necessary

the consent of the accused was not necessary in the circumstances and whether he consented or not would be

immaterial. What could be relevant in this context is if the gardaí tried to get his consent under a deliberate subterfuge

and misrepresentation of matters and then went off to the hospital with a consent having been obtained in such

underhand methods but that doesn't apply here. Garda Healy, for example, didn't obtain didn't caution him because she

was unaware of the legal position at the time. Now, that wasn't a deliberate act on her part. It may have been an act of

ignorant omission but in any event the consent was not necessary in any event and the evidence was obtained, was

given by the hospital to the gardaí, who as the police force have a duty to gather such evidence. The evidence is there,

it's clearly admissible as being in the public interest in the investigation and prosecution of crime and on the evidence

before me there is no basis for saying that any of the gardaí or any of the staff from the hospital did anything illegal, let

alone underhand. I rule that all of this material is admissible.”

Decision

24. We are satisfied that the learned trial judge was correct in holding that the constitutional right to privacy has never been stated

in unqualified terms. While the right to privacy in marriage has been upheld in McGee v. Attorney General [1974] I.R. 284, the

Constitution does not guarantee or expressly refer to a right of privacy.

25. In the course of his judgment in Kennedy v. Ireland [1987] I.R. 587, at p.592, Hamilton P. stated:-

“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of

the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise

may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the

requirements of public order and morality.”

26. McMahon & Binchy, ‘Law of Torts’ 4th Ed. (2013, Bloomsbury Professional), state at para. 37.90 that the heterodoxy of the

dissenting judgments in Norris v. Ireland [1984] I.R. 36 has acquired orthodox status and go on to note that, Kearns P. (for divisional

court of the High Court in Fleming v. Ireland [2013] IEHC 2) quoted a passage from Henchy J.’s judgment in that case, which, while

“admittedly dissenting”, in the view of Kearns P. “may be taken to represent the current judicial consensus on this question”. Henchy

J. had there stated at paras. 71-72 that:-

“There is necessarily given to the citizen, within the required social, political and moral framework, such a range of

personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society

envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a

vital human component of the social, political and moral order posited by the Constitution . . . it is sufficient to say that

there are [personal rights of this nature] which fall within a secluded area of activity or non-activity which may be

claimed as necessary for the expression of individual personality, for purposes not always necessarily moral or

commendable, but meriting recognition in circumstances which do not engender considerations such as State security,

public order or morality, or other essential components of the common good.”

27. The case law suggests that the right to privacy is a right that lies to be decided on a case-by-case basis. As McMahon & Binchy

state at para. 37.100:-

“The ongoing uncertainty as to the source, extent and character of a generic right to privacy manifest in the Irish case

law, may in part be also explained by a subconscious recognition by the judiciary in the few cases that have come before

it that the concept is so fact-specific that generalisations are both difficult and dangerous.”

28. In the course of their discussion on the right to privacy, McMahon & Binchy considered tests that may be applied in considering

whether or not a right to privacy exists. One of these is whether the invasion of privacy would be highly offensive to a reasonable

person of ordinary sensibilities, and another test would be an invasion of privacy in circumstances where a person has a reasonable

expectation of privacy.

29. In the present case, the appellant was entitled to expect that because of the hospital/patient relationship, his medical records,

including the results of the toxicology tests which measured his blood alcohol levels at the time of his admission to the hospital would

in general be kept private i.e. maintained confidentially and used only for his care and treatment as a patient. It should be noted here

that, although the appellant was unconscious at the time, the gardaí did, at that time, seek to obtain a blood alcohol level report

from the treating doctor. However, to the extent that the appellant had an entitlement, it was a qualified entitlement only. He had no

absolute entitlement to expect that his privacy would be maintained and his records kept confidential. His entitlement was no more

than to expect that his records would not be disclosed, save where that was required by exigencies of the common good.

30. The exigencies of the common good include, undoubtedly, a public interest in the prosecution of persons suspected of having

committed serious crimes and the need for the gardaí to gather evidence to facilitate and support such prosecutions. While a person

is entitled to expect that a keeper of his or her medical records will not likely or arbitrarily disclose them and will in general strive to

maintain confidentiality with respect to them, it may be reasonable in the circumstances of a particular case for the gardaí to request

relevant records from a hospital and for the hospital to release them. It was reasonable, in the circumstances of this case, for Garda

Healy to request the records in question from Limerick Regional Hospital and for the hospital to release them to her. The appellant’s

interest in keeping the records in question private was not sufficient to override the public interest in the gardaí being able to secure

the results of the toxicology tests as part of their criminal investigation into the suspected serious offence of dangerous driving

causing death, in circumstances where the appellant had been driving a relevant vehicle and was suspected of having been under the

influence of alcohol.

31. In that regard, it is a matter of some importance, as correctly identified by the trial judge that the toxicology results were not

obtained from the hospital by any deliberate subterfuge or misrepresentation. When requested to make the records available, the

hospital laboratory manager, Mr. O’Connell, indicated that he required the consent of the appellant and Garda Healy then forwarded to

him a copy of the standard consent form for the seeking of medical records used at Askeaton garda station which had earlier been

signed by the appellant. However, it appears that neither Garda Healy nor Mr. O’Connell scrutinised the precise wording of the

consent form which limited the appellant’s consent to the furnishing of a medical report on the injuries sustained by him. We are

satisfied that the evidence is all one way and it is to the effect that the said consent document was forwarded to Mr. O’Connell by

Garda Healy in good faith, but in the erroneous belief that it would be adequate to meet the hospital’s need for an indication of

consent in writing and that there was no intent to deceive or mislead. On the contrary, the gardaí had made plain to the hospital

authorities from an early stage their interest in obtaining information as to the appellant’s blood alcohol levels at the time of his

admission. As has already been noted, another garda, having attended at the hospital shortly after the appellant had been received

there, requested a doctor treating the appellant to take a blood sample from the appellant for forensic purposes. The doctor in

question had been unwilling to do so due to the unstable condition of the patient at that time who required to be urgently taken to

the operating theatre.

32. We are satisfied that in the circumstances of this case, the appellant’s claim that his constitutional right to privacy was breached

in respect of the toxicology report at issue is defeated by the overriding public interest on foot of which the gardaí were under an

obligation to properly investigate the suspected serious crime of dangerous driving causing death and to gather evidence relevant to

that investigation. To the extent that the garda action may have interfered with the privacy of the appellant, it was a proportionate

interference having regard to the greater public interest and was necessary in the circumstances of the case. Equally, any claim by

the appellant to confidentiality in the said record must also fail for the same reason. We are satisfied that in the circumstances of the

case, the appellant’s consent was not in fact required for the release of the toxicology report to the gardaí.

33. We take note of the fact that reflecting the public interest that we have alluded to, the Oireachtas has, since the date of the

offence committed in this case, placed a statutory obligation upon an injured driver of a motor vehicle that has been involved in a

road traffic accident to provide, in certain circumstances, a relevant blood or urine sample while in hospital. This is now provided for in

s. 14 of the Road Traffic Act 2010 as substituted by s. 8 of the Road Traffic (No. 2) Act 2011 and amended by the Road Traffic Act

2014 with effect from 26th November 2014 (S.I. No. 535 2014).

34. This amending legislation was not in force at the time of the offence committed by the appellant. However, that does not affect

in any way our finding that the toxicology report in this case was properly admitted into evidence.

35. Accordingly, we dismiss the appeal.