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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Madigan v. Devally [1998] IEHC 58; [1999] 2 ILRM 141 (2nd April, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/58.html
Cite as: [1998] IEHC 58, [1999] 2 ILRM 141

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Madigan v. Devally [1998] IEHC 58; [1999] 2 ILRM 141 (2nd April, 1998)

THE HIGH COURT
1997 No. 114 JR
BETWEEN
RORY MADIGAN
APPLICANT
AND
JUDGE LIAM DEVALLY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS

Judgment delivered this 2nd day of April 1998 by Mr. Justice Kinlen

1. These proceedings arise out of the hearing by the first named respondent herein of a District Court appeal on or about the 6th March, 1997. The Applicant appeared before Judge Devally charged with an offence contrary to Section 49(2) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994. The appeal, being a District Court appeal, took the form of a full rehearing of the matter.

2. The Applicant seeks:-

(a) an Order of Certiorari of the conviction;
(b) an Order of Mandamus requiring Judge Devally to state a case for the opinion of the Supreme Court pursuant to Section 16 of the Courts of Justice Act, 1947;
(c) an Order of Prohibition prohibiting the respondents from taking any further steps in the criminal proceedings in the matter of the application.

3. At the hearing in this Court, while it was not exactly conceded, there was no real argument addressed to this Court that an Order of Mandamus or an Order of Prohibition would be appropriate in the circumstances prevailing. Accordingly, this Court is merely concerned with Certiorari. It is not a form of appeal. The High Court cannot be asked to reassess the evidence given before Judge Devally. It is concerned with the manner in which a decision is reached rather than a decision itself. The standard to be applied seems to me to be set out in The State (Keegan) -v- Stardust Tribunal (1986) I.R. 642 at 658 where Henchy J. says:-


"As to the suggestion that the unreasonableness of a decision should be decided by the extent to which it fails to accord with accepted moral standards, I would be equally slow to accept that criterion. The concept of 'accepted moral standards' represents a vague, illusive and changing body of standards which in a pluralist society is sometimes difficult to ascertain and is sometimes inappropriate or irrelevant to the decision in question (as it is to the decision in question in this case). The ethical or moral postulates of our Constitution will, of course, make certain decisions invalid for being repugnant to the Constitution, but in most cases a decision falls to be quashed for unreasonableness not because of the extent to which it has departed from accepted moral standards (or positive morality), but because it is indefensible for being in the teeth of plain reason and common sense.

I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.

If it does, then the decision maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision making which affects rights or duties requires, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."

4. There is an apparent conflict on the Affidavits filed as to the precise evidence given by Garda Fanning.

5. Mr. Justice Kelly on the 21st March, 1997, on the basis of the Affidavit of Sean Costello filed on the 20th March, 1997 verifying the facts, gave leave to apply by way of Judicial Review for the reliefs set out in paragraph d of the Statement filed directed in an originating Notice of Motion and with copies of the Statement and verifying Affidavit and of the Order on specified parties and giving the Respondents 21 days after the date of service, Statement of Opposition and Grounding Affidavit and reserving the question of costs. The Grounding Affidavit is that of Sean Costello, Solicitor for the Applicant, who says that he attended in the Circuit Court on the Applicant's appeal against his convictions for an offence contrary to Section 49(2) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 before His Honour Judge Devally. The Prosecutor (the Second named Respondent) represented by Mr. Geraghty's Solicitor in the Chief State Solicitors' Office, Mr. Costello avers that:-


"Garda Paul Fanning gave evidence that on the 29th December, 1994 at about 5.00 p.m. or a little before 5.00 p.m., he was the driver of a patrol car attached to Finglas Garda Station and he observed a motor vehicle, registration number and letters OZG 627, being driven in an erratic manner along the north road. He said that he signalled the car to stop, put on flashing lights and the car pulled in behind some road works. Garda Fanning stated that he spoke to the driver and got a bad smell of drink from the driver. The driver stumbled as he got out of his vehicle. Garda Fanning formed the opinion that the driver was incapable of having proper control over a mechanically propelled vehicle in a public place due to the consumption of an intoxicant. At 5.00 p.m. he arrested the driver under Section 49(6) of the Road Traffic Act, 1994 for an offence under Sub-sections (1), (2) and (3) of Section 49 of that Act. The garda then identified the driver as being the Applicant, Rory Madigan. The garda then stated that he conveyed the Applicant to Finglas Garda Station and Dr. Williams was contacted. He arrived and was introduced to the Applicant as a designated registered medical practitioner. At 5.49 p.m., Garda Fanning made a requirement under the terms of Section 13(1)(b) of the Road Traffic Act, 1978 of the Applicant to allow the doctor to take from him a sample of his blood or at his option to provide the doctor with a sample of his urine. The consequence of him providing such requirement was explained to the Applicant. The Applicant furnished a sample of blood to the doctor at 5.51 p.m.. The provisions of Section 18 of the 1994 Act were complied with and the Applicant retained one of his samples. Garda Fanning then stated that he subsequently received a certificate from the Medical Bureau of Road Safety indicating a concentration of 255 milligrams of alcohol per 100 millilitres of blood in respect of the said sample. Garda Fanning was then asked by the prosecuting Solicitors as to what section he had arrested the Applicant under and Garda Fanning stated that the Applicant was arrested under Section 49(6) of the Road Traffic Act, 1994. The prosecuting Solicitor then asked Garda Fanning whether he explained to the Accused what he arrested him for and Garda Fanning confirmed that he explained to the Applicant that he was being arrested for drunken driving and this explanation took place at Finglas Garda Station. The State then closed his case. "

6. Counsel for the Applicant then applied to the First named Respondent for a direction on two grounds. Firstly, that the arrest was unlawful as Section 49(6) of the Road Traffic Act, 1994 did not give to Garda Fanning the power to arrest and consequently the action taken by Garda Fanning on foot of the unlawful arrest was inadmissible. Secondly, Counsel submitted that the requirement of the Applicant to permit Dr. Williams to take from him a sample of blood was not lawfully made as the requirement was stated by Garda Fanning under Section 31(b) of the Road Traffic Act, 1978 which said Act had been repealed at the time. In reply to these submissions, Mr. Geraghty, on behalf of the Second named Respondent, stated that "I think he has me on the second point". He then went on to submit that the arrest had been a lawful arrest and that it must have been quite clear to the Applicant as to why he was being arrested.

7. The First named Respondent indicated that he would not accept either submission made on behalf of the Applicant. Counsel then asked the First named Respondent to consider the fact that the prosecuting Solicitor had in effect conceded the second submission. The First named Respondent said that he felt that the Applicant should be convicted.

8. Counsel on behalf of the Applicant then applied to the First named Respondent to state a case to the Supreme Court under the provisions of Section 16 of the Courts of Justice Act, 1947. The First named Respondent indicated that he would not do so. He then asked the prosecuting Solicitor what his views were on the matter of the case stated. The prosecuting Solicitor, in spite of his previous admission that the Applicant had a good point in relation to the unlawfulness of the requirement to permit the doctor to take a sample of blood, stated that it was really a matter for the First named Respondent. Counsel on behalf of the Applicant applied again to the First named Respondent to state a case and the First named Respondent refused so to do. Counsel then pointed out that under the terms of Section 13(1)(b) of the Road Traffic Act, 1984, a requirement could be made of a person who had been arrested under Section 49(8) of the Road Traffic Act, 1994. The First named Respondent indicated that he would proceed to convict. Garda Paul Fanning swore an Affidavit on the 11th July, 1997. The relevant portion of his Affidavit reads as follows:-


"4. I say that at paragraph 5 of the said Affidavit Mr. Costello fails to fully set out the evidence I gave the First named Respondent regarding the arrest of the Applicant. I gave evidence before the First named Respondent that the Applicant herein was arrested under Section 49(6) of the Road Traffic Act, 1961. I informed the First named Respondent that at the place of his arrest I informed the Applicant in layman's terms that he was arrested for what was known as drink-driving. This was before I conveyed the Applicant back to Finglas Garda Station.

I say that the end of paragraph 5 of the Affidavit of Mr. Costello it is suggested that the Accused was informed at Finglas Garda Station of the reasons for his arrest. The Accused was again informed once he arrived at Finglas Garda Station of the reasons for his arrest but he had been informed on the roadside and this evidence had been given to the First named Respondent."

9. Mr. Patrick Geraghty, Solicitor of the Office of the Chief State Solicitor, also made an Affidavit sworn the 3rd October, 1997. The relevant portion reads as follows:-


"3. I beg to refer in particular to paragraph 6, 7, and 8 of the Grounding Affidavit herein sworn by Sean Costello, Solicitor, on the 20th March, 1997. I believe that Mr. Costello's recollection of what I stated to the First named Respondent herein at the close of the prosecution case is somewhat inaccurate. At the close of the prosecution case and following submissions of Counsel and in particular by submission made by Counsel regarding the lawfulness of the requirement made under Section 13(1)(b) of the Road Traffic Act I stated:

'I think he may have me on the second point.'

10. Mr. Costello suggests that I conceded that the submission made by Counsel on behalf of the Appellant was correct. This is not the case, although I did indicate that Counsel may have been correct. Indeed at paragraph 7 Mr. Costello refers to the fact that Counsel asked the trial Judge to consider the fact that I have effectively conceded the second submission. At this point I again indicated to the Court that I had not conceded the point I merely had indicated that Counsel may have been correct but that it was up to Judge Devally to decide the case. Likewise when reference was made to an application for a case stated I reiterated that I was not conceding the point but rather that Counsel may have raised a good point."


11. Sean Costello then filed an additional Affidavit sworn the 25th July, 1997. The relevant paragraph reads:-


"2. I say that in paragraph 3 of his Affidavit, Garda Fanning seeks to correct the Statements in my said original Affidavit in that he:-

(a) states that he arrested Mr. Madigan under Section 49(6) of the Road Traffic Act, 1961 (as opposed to the Road Traffic Act, 1994).
(b) asserts that he informed Mr. Madigan at the time of the arrest of the reason for the arrest in layman's terms.

I can only reiterate that it is my note of the proceedings and this note accords with Counsel's note that:-

(a) the arrest was made under Section 49(6) of the Road Traffic Act, 1994.
(b) the garda did not inform Mr. Madigan at the time of the arrest of the reason for the arrest.

If necessary, I seek leave of this Honourable Court to seek the Judge's note in respect of the said proceedings in order to establish which of the recollections is accurate.

However, I am advised by Counsel and believe that this may not be necessary in that even if this Honourable Court accepted Garda Fanning's version of the arrest under Section 49(6) of the 1961 Act, this sub-section does not give a power of arrest and consequently the sequences already complained of by the Applicant follow from such an arrest."

12. The entitlement to require a specimen arises only if an accused is in a garda station having been arrested under Section 49(8) of the Road Traffic Act, 1961. A right to impugned bodily integrity by requiring samples must be based on statute and must be strictly construed. Section 13(1) of the Road Traffic Act, 1994 is quite explicit as to when a member of the Garda Siochana may, at his own discretion, require the person to provide specimens of his breath or permit a designated doctor to take a specimen of his blood or if the person arrested prefers to provide for the designated doctor a specimen of his urine. The condition precedent to these decisions is provided in Sub-Section (1) and states:-


"Where a person is arrested under Section 49(8) or 50(10) of the Principal Act or Section 12(3) 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 Siochana is of opinion that the person has consumed an intoxicant."

13. The uncontroverted evidence in this case is that Mr. Madigan was not arrested under any of the sections specified in Section 13(1) of the Road Traffic Act, 1994.

14. It is argued by the State that the Accused must have known clearly he was being arrested for "drink-driving". He relies on the unreported judgment of Geoghegan J. on the 16th October, 1997 in D.P.P. -v- Francis Connell , and recalls the decision of Blayney J. in D.P.P. -v- Mooney , 1992 1 I.R. 548. In the former case (which was a case stated) the Sergeant gave a wrong statutory citation. The garda was referring to Section 49(8) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994. The next question really is whether the failure to give the correct sub-subsection on Section 49 when taking the sample referring to the section of an Act which had been repealed when he described it as 1978 and should have said 1994. In the case of The Director of Public Prosecutions -v- McGarrigle , (unreported, Supreme Court, 22nd June, 1987) Finlay C.J. states:-


"The obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique exception to the general principles of our criminal code which protect accused persons against involuntary self-incrimination. The enforcement of it on the terms of Section 13 of the Act of 1978 depends completely on proof that the requirement refused was made under that section. Such a basic requirement in a serious matter must, it seems to me, be affirmatively proved and not left to be inferred."

15. In the matter of Section 2 of the Summary Jurisdiction Act, 1857 as extended by Section 21 of the Courts (Supplemental Provisions) Act, 1961 between Derek Brennan, Appellant and The Director of Public Prosecutions, Respondent , [1996] 1 I.L.R.M. 267, O'Flaherty J. on the 1st November, 1995 (with the concurrence of Hamilton C.J. and Denham J.) delivered a judgment and refers favourably to The People (D.P.P) -v- B. Quilligan , 1986 I.R. 495 in saying:-


"There is, therefore, no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and no policy purpose is served by requiring members of the gardai to invoke the actual section on which the requirement is based in these circumstances. The requirements for a valid arrest are different since the deprivation of the person's liberty is involved and, in general, it will be necessary for a garda to invoke the operative section when he makes an arrest: The People (D.P.P.) -v- Quilligan , 1986 I.R. 495.

Section 13 simply sets out what is required of a suspect subsequent on his arrest."

16. I would respectfully adopt that statement of the law. An arrest is a very serious intrusion on a person's liberty and should only be done in strict accordance with the law. This may be regarded as an legalistic approach but it is the proper approach rather than using some slipshod remark by saying "Well, sure I meant Sub-section (8)". In this case the garda very properly does not attempt to make such a case.

17. The Court will accordingly quash the Order of the learned Circuit Judge.

© 1998 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1998/58.html