The Director of Public Prosecutions (at the suit of Garda J. Lenihan) (appellant) v Joseph McGuire (respondent).

Road Traffic Offence - Case stated - Driving with excessive quantity of alcohol in the body - Whether arrest in compliance with the provisions of the 1987 Regulations - Meaning of the phrase "member in charge" - Whether to be member in charge garda has to have entered his name in the station diary - Whether prejudice - Summary Jurisdiction Act 1857 - Courts (Supplemental Pro visions) Act 1961, section 51 - Road Traffic Act 1961 (No 24), section 49(2)6A - Criminal Justice Act 1984 (No 22), section 7 - Criminal Justice Act 1984 (Treatment of Persons in Custody Stations) Regulations 1987 (SI No 119), articles 4, 5, 6. 7 and 8 - Road Traffic Act 1994 (No 7), section 10.

The High Court (before Mr Justice Kelly); judgment delivered 31 July 1996.

THE Criminal Justice Act 1984 is an important enactment dealing, inter alia, with the safeguarding of rights of persons who are in the custody of the Garda. Section 7 of the Acts creates a mandatory obligation on the minister to make regulations providing for the treatment of persons in custody in Garda stations. The second subsection of that section requires that the regulations include a provision for the assignment to the member of the Garda station in charge of a Garda station, or 19 some other member, of responsibility for overseeing the application of the regulations at that station. This is an important responsibility placed on the shoulders of such a person.

Article 4(1) of the Regulation defines the term "member in charge". It means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to these regulations. This, definition of the term "member in charge" relates to a factual position which obtains in a Garda station at any relevant time. The "member in charge" within the meaning of these regulations is the person who is actually in charge of a station at a time when such person is required to do anything or cause to be done anything pursuant to the regulations. Article 4(2) creates an obligation on a superintendent in charge of a district to issue instructions in writing as to who is to be the member in charge in each station in the district. The object of this obligation is to ensure that there can be no doubt as to who "member in charge" is at any particular time.

Having regard to the statutory provisions of the 1984 Act and the 1987 Regulations, there must at all times be a "member in charge" in a Garda station in which persons are in custody. Performance of the duties imposed by the A and the Regulations and the protection of the rights of persons in custody cannot depend upon the entry or non entry of a garda's name in a station diary. That is certainly a useful administrative mechanism for identifying who the member in charge may be from time to time. The fact that a garda does not comply with the directive by, failing to put his name in the station diary, does not and cannot fail to make him member in charge if in fact he is. In the present case, the material set forth in the case stated demonstrated that not merely did Garda Grace believe himself to be the member in charge at the appropriate time but he also completed the custody record in respect of the respondent.

There must be a causal link between failure to comply with the relevant regulations and whatever prejudice is alleged to have been suffered by an accused as a result thereof. It is only when there is a causal connection between the breach and prejudice that the District Court could conclude that it would be legitimate to consider dismissing the charges.

The High Court so held in answering the first question of a case stated, in the negative and in remitting the matter to the District Court to proceed with the hearing.

Adrienne Egan BL for the appellant, Jeremy Maher BL for the respondent.

MR JUSTICE KELLY said that on 16 May 1995 the respondent appeared before District Judge William Harnett at Kilkenny District Court. He was charged with a number of road traffic offences.

He pleaded guilty to some of them including driving without a driving licence and driving without insurance. He pleaded not guilty to a charge of driving a vehicle while there was present in his body a quantity of alcohol such that, within three hours after so driving the said vehicle, the concentration of alcohol in his blood exceeded the concentration of 80 milligrams of alcohol per 100 millilitres of blood. That charge was brought pursuant to the provisions of section 49(2)6A of the 1961 Act as 10 of the 1994 Act.

Mr Justice Kelly said that evidence was given by members of the Garda dealing with the stepping of the respondent, the administration of a breath test, his arrest, the giving of a blood sample and its analysis by the Medical Bureau of Road Safety. No objection, technical or otherwise, was raised in respect of any of these matters. However, the court adjourned to 6 June 1995 in order to hear the evidence of the member in charge of Kilkenny Garda Station on the night of the respondent's arrest as to compliance with the provisions of the 1977 Regulations.

The 1984 Act deals, inter alia, with the detention of arrested persons in Garda Siochana custody and section 7 requires the Minister for Justice to make regulations providing for the treatment of persons in custody in Garda stations.

Section 7(2) provides that the regulations shall include provision for the assignment to the member of the Garda Siochana in charge of a Garda station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Siochana.

Subsection 3 of the same section, provides as follows:

"A failure on the part of any member of the Garda Siochana to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil liability or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him."

The Minister for Justice made Regulations in exercise of the powers conferred on him by section 7 of the 1984 Act. Article 4 of the Regulations provides:

"(1) In these regulations member in charge means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to the Regulations.

"(2) The Superintendent in charge of a district shall issue instructions in writing from time to time, either generally or by reference to particular members or members of particular ranks or to particular circumstances, as to who is to be the member in charge of each station in the district.

"(3) As far as practicable, the member in charge shall not be a member who is involved in the arrest of the person for the offence in respect of which he is in custody in the station or in the investigation of that offence.

"(4) The Superintendent in charge of a district shall ensure that a written record is maintained in each station in his district containing the name and rank of the member in charge at any given Article 5 of the regulations set forth the duties of the member in charge. Article 6 requires the keeping of a custody record in respect of each person in custody. Article 7 sets forth what is to be contained in the record in relation to an arrested person. Article 8 sets forth the information which the member in charge is obliged to furnish to an arrested person.

Mr Justice Kelly said that when the case resumed before the District Justice on 6 June 1995, Inspector Aidan Roche, who appeared on behalf of the Director of Public Prosecutions, called Garda, John Grace with the relevant custody record to prove compliance with the regulations. The solicitor for the respondent objected on the basis that, before Garda Grace could give evidence on these matters, he required proof that Garda Grace was the member in charge at the appropriate time. To this, the inspector indicated that Garda Grace would be stating on oath that he was the member in charge and that he would prove completion, of the custody record in respect of the respondent. The solicitor for the respondent stated that he was not referring to the custody record but rather to the station diary. He proceeded to quote from a directive issued by Superintendent Duffe in compliance with Regulation 4(2) of the 1987 Regulations which provided that the member of an duty in writing in the station diary as station orderly in the Garda Station shall be the member in charge of the Garda Station as defined and required under the provisions of the 1984 Act. This instruction from Superintendent Duffe came into operation on 15 May 1987.

Mr Justice Kelly said that the District Judge was informed that Garda Grace had taken over as member in charge to relieve another member of the Garda, namely a Garda Begley at 1.00 a.m. on the morning of the arrest of the respondent. Garda Grace performed all the duties of the member in charge in, relation to the respondent including the correct completion of the custody record and the notification to him of his rights as a prisoner. However, Garda Grace had overlooked making the appropriate entry as to his taking up duty in the station diary. Various submissions were made to the District Judge on this occasion and the matter was further adjourned until 13 June 1995.

On that date, Inspector Roche informed the District Judge that Garda Grace overlooked signing the diary when he relieved Garda Begley who had been the member in charge. Garda Begley took up duty as member in charge at 10.00 p.m. and would normally be relieved at 1.00 a.m. The respondent was taken into custody shortly thereafter. Garda Begley told Garda Grace to take over as he, Garda Begley, was taking a meal break but Garda Begley remained in the day room and was present when Garda Grace completed the custody record and informed the accused of his rights. Accordingly, Inspector Roche argued that the regulations were complied with from a technical point of view. He went on to argue that it could he said that Garda Begley was still the member in charge contained in Article 4 of the regulations and submitted that the expression "member in charge" meant the person who was de facto in charge at a given time. In any event, the inspector contended that the respondent had not suffered any prejudice by the omission of Garda Grace to sign the diary and so, having regard to the decision of Mr Justice O'Hanlon in DPP v Spratt [1995] 1 IR 585 and the provisions of section 7(3) of the Act, was not entitled to a dismiss.

Mr Justice Kelly said that the solicitor for the respondent submitted that the 1984 Act recognised that a member of the Garda Siochana would have to be in charge of a station at a given time. That person should be recognisable as the specific member in charge and the regulations were, he said implemented so as to identify clearly who the particular member in charge should be. Article 4(2) required that the Superintendent to issue instructions as to who is to be the member in charge. He did so by his memorandum of 14 May 1987.

The solicitor for the respondent further contended that the prosecutor could not now try to suggest that Garda Begley was still the member in charge because his name happened to be entered in the station diary as the member in charge. He contended that it would be impossible for a person or his or her solicitor to identify who the appropriate member in charge was in those circumstances. Accordingly, he objected, to the District Judge hearing evidence from Garda Grace if that Garda was putporting to give evidence as member in charge but could not prove that he was in fact the member in charge. He also contended that the court had merely heard submissions that the regulations were complied with but there was no evidence before the court that this had in fact occurred.

The District Judge rejected the submissions of the prosecution.

He held that Garda Grace was not the member in charge of the station at the relevant time because he did not make the necessary entry in the station diary to show that he was the member in charge. He took the view that "everything was triggered into action on the member in charge making this entry and that one could not have a situation where anyone could claim to be a member charge". Accordingly, he dismissed the charge brought under section 49 of the 1961 Act as amended.

Mr Justice Kelly said that the District Judge had now stated a case for the opinion of the High Court as to whether he was correct in law in dismissing the charge. In particular, he asked the following questions:

"(a) Whether I was correct in law in the circumstances of the present case in holding that Garda Grace could not in fact be the member in charge of the Garda station at the relevant time, on the grounds that he had not complied with the directive issued by Superintendent Duffe in relation to the entry of his name in the station diary.

"(b) If the answer to the foregoing is in the affirmative whether I was correct in law in the circumstances of the present case in holding that there had been non compliance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987 which warranted a dismissal of the said charge."

Mr Justice Kelly said that section 7 of the Act creates a mandatory obligation on the minister to make regulations providing for the treatment of persons in custody in garda stations. The second subsection of that section requires that the regulations include a provision for the assignment to the member of the Garda Siochana in charge of a Garda station, or to some other member, of responsibility for overseeing the application of the regulations at that station. The term "member in charge" means the member who is in charge of a station at a time when the member in charge of a station is required to do anything or cause anything to be done pursuant to these regulations. It was Mr Justice Kelly's view that this definition relates to a factual position which obtains in a Garda station at any relevant time. He said that the member in charge is the person who is actually in charge of a station at a time when such person is required to do anything or cause to be done anything pursuant to the regulations. It appeared to Mr Justice Kelly that the object of the obligation on a superintendent in charge of a district to issue instructions in writing as to who is to be the member in charge in each station in the district, is to ensure that there can be no doubt as to who "member in charge" is at any particular time.

Mr Justice Kelly said that in the present case, Superintendent Duffe in purported compliance with Article 4 of the regulation issued his directive of 14 May 1987. He did not specify on which paragraph of Article 4 he relied. Mr Justice Kelly said that the directive was unhappily worded in a number of respects. The superintendent instructed that "the member of An Garda Siochana who takes up duty in writing in the station diary as station orderly in the Garda station shall be the member in charge of the Garda station" for the purposes of the regulations. It was difficult to see how a garda could take up duty in writing. The instruction also left itself open to a construction that the "member in charge" only becomes so when he writes his name in the station diary. Mr Justice Kelly said that if this was the correct construction, then the District Judge was right in concluding as he did that Garda Grace could not be the "member in charge" because of his failure to sign his name in the station diary.

Mr Justice Kelly did not believe that this was a correct assessment of the position. He was of the opinion, that, having regard to the statutory provisions of the 1984 Act and the 1987 Regulations, there must be at all times be a "member in charge" in a Garda station in which persons are in custody. Performance of the duties imposed by the Act and Regulations and the protection of the rights of persons in custody could not, in his view, depend upon the entry or non entry of a garda's name in a station diary. The duties and obligations imposed upon a member in charge do not flow from the fact that his name is signed in the station diary. It appeared to Mr Justice Kelly that if Superintendent Duffe's instruction of 14 May 1987 is construed against the statutory and regulatory background in question, that it could be nothing more than a method of identifying who the member in charge is from time to time. A failure to comply with it does not make the actual member in charge any the less so.

Mr Justice Kelly said that he had reached this conclusion on this aspect of the matter by reference to the definition of "member in charge" which is contained in Article 4(1) of the Regulations. That appeared to him to admit only of a situation where the member in charge must be the person who in fact is in charge of a Garda station when anything is to be done pursuant to the regulations. If Superintendent Duffe's instruction were to be given the construction which is urged by the respondent, it would in his view be ultra vires his powers. Mr Justice Kelly said that Superintendent Duffe could not, by an instruction issued under Article 4(2) of the regulations, in effect rewrite or depart from the definition of "member in charge" which is contained in Article 4(1). It was not, however, necessary for him to make a determination that, Superintendent Duffe's instruction was ultra vires since he believed that it is to be construed, when seen against the statutory framework, as being nothing more than the provision of an administrative mechanism for identifying who the "member in charge" is to be in the present case, the material set forth demonstrated that not merely did Garda Grace believe himself to be the member in charge at the appropriate time but he also completed the custody record in respect of the respondent.

He also took over as member in charge in order to relieve Garda Begley. He performed all of the duties of a member in charge in relation to the respondent. Mr Justice Kelly was of the view that, in these circumstances, the District Judge was incorrect in law in holding that Garda Grace could not in fact he the member in charge of the Garda station simply because he had not complied with the directive issued by Superintendent Duffe in relation to the entry of his name in the station diary. Accordingly, he answered the first question in the negative.

Mr Justice Kelly said that although in the circumstances, it was not necessary for him to answer the second question, he thought it appropriate that he should nevertheless express his views on the issue raised. He referred to section 7(3) of the 1984 Act which makes it quite clear that a failure on the part of any member of the Garda to observe any provision of the regulations made under the act will not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him. In DPP v Spratt [1995] 1 IR 585 Mr Justice O'Hanlon considered the phrase "of itself" and stated that the phrase is obviously an important one in the construction of the statutory provisions and he interpreted the subsection as meaning that non observance of the regulations is not to bring about automatically the exclusion from evidence of all that was done and said while the accused was in custody. Mr Justice O'Hanlon added that it appeared to be left to the court of trial to adjudicate in every case as to the impact the non compliance with the regulations should have on the case for the prosecution.

Mr Justice Kelly agreed with this view. He said that in the present case, the District Judge never actually went on to hear the evidence of Garda Grace because of the approach which he (the District Judge) took to the objection raised. He said, that it was not for him to adjudicate upon whether the failure on the part of Garda Grace to comply with the directive issued by Superintendent Duffe caused any prejudice to the respondent. All he could say was that if at the resumed hearing of the case, Garda Grace gave evidence along the lines indicated by Inspector Roche and the only departure from the regulations on his part was his failure to sign his name in the station diary, it would be extremely difficult to see how that of itself could cause prejudice to the respondent. Mr Justice Kelly took the view that there must be a causal link between failure to comply with the relevant regulations and whatever prejudice is alleged to have been suffered by an accused as a result thereof. The appropriate question to ask is if a breach of the regulations has taken place, was the accused prejudiced thereby?. It is only when there is a causal connection between the breach and the prejudice that the District Court could conclude that it would be legitimate to consider dismissing the charge. Any other approach would appear to him to do violence to the clear wording of section 7(3) of the 1984 Act.

Mr Justice Kelly answered the first question in the negative and said that it was not necessary for him to answer the second question. He remitted the matter to the District Court to proceed with the hearing.

Solicitors: Chief State Solicitor for the appellant; Lanigan O'Mahony (Kilkenny) for the respondent