THE SUPREME COURT
[Appeal No: 130/08]
In the Matter of section 16 of the Courts of Justice Act, 1947
In the Matter of a Case Stated in proceedings before Dublin Circuit Court
The Director of Public Prosecutions
(at the suit of Garda S Keoghan)
Judgment of Mr. Justice Clarke delivered the 11th March, 2013.
1.1 Technical questions concerning the precise application of drunk driving legislation have been the subject of controversy for many years. This case, however, raises an unusual feature. Indeed on one view it might be argued that if the position taken by the Prosecutor (“the Director”) in this case is correct persons might be at risk of being convicted rather than acquitted on a technicality.
1.2 The defendant ("Ms Cagney") was prosecuted for failing to provide a breath sample. The case came before the Circuit Court (His Honour Judge O'Sullivan) on appeal which involved, of course, a full rehearing. His Honour Judge O'Sullivan was satisfied that Ms Cagney, having been lawfully required to provide two samples of her breath by means of an intoxilyser, was unable to do so due to a transient medical condition. Both sides agreed that Ms Cagney was not offered the alternative of giving a sample of blood or urine.
1.3 A legal debate followed as to whether, in those circumstances, Ms Cagney was entitled to defend successfully the prosecution brought against her. His Honour Judge O'Sullivan was of the view that she was but was asked by the Director to state a case to this Court which raises two connected net questions as to the proper interpretation of the relevant legislation and its application to a case such as arose in respect of Ms Cagney.
1.4 To understand the issues in more detail it is appropriate to turn next to the case stated.
2. The Case Stated
2.1 Having dealt with the procedural history of the case and the hearing before him, His Honour Judge O'Sullivan went on, at para. 3 of the case stated, to set out the facts which were proved, admitted, agreed or were found by him. Having recited the underlying evidence including that of Ms Cagney and her general practitioner doctor, the trial judge went on to make the following findings of fact as noted at para. 3(f) of the case stated:-
2.2 In addition some of the uncontroverted evidence noted in the case stated is, at least on one view, potentially relevant to the issues which this court has to determine. First it should be noted that the Garda charged with dealing with the application of the intoxilyser accepted that Ms. Cagney had made genuine attempts to provide a breath sample. It was also accepted that the Garda in question had asked Ms. Cagney whether or not she had any medical conditions which would prevent her from providing a specimen but that she had replied “none”. At the trial before His Honour Judge O’Sullivan Ms. Cagney did indicate that she had a cough and a chest infection. In addition, while her general practitioner found no clinical symptoms when he saw her the following evening, he did diagnose a post-viral condition and expressed the view that Ms. Cagney would not have been able to provide a breath sample.
"(i) that a lawful requirement had been made of the accused to provide two samples of her breath pursuant to section 13(1)(a);
(ii) that the accused had failed to do so, in the sense that she had not provided samples of her breath capable f being measured or tested by the intoxilyser;
(iii) that the reason the accused was unable to do so was due to her medical condition at that time, which was a transient condition."
2.3 Thereafter, the trial judge addressed the legal issues which arose and noted that counsel on behalf of Ms Cagney had sought to rely on the provisions of s.23 of the Road Traffic Act, 1994 ("the 1994 Act") which provides as follows:
It should, at this stage, be noted that the defence provided for in s.23 involves, therefore, two parts. First, it is necessary that the person have a "special and substantial reason" for refusal. Second is the requirement concerning a blood or urine sample. The proper interpretation of that requirement became a significant issue before the trial judge, as appears hereafter, and also was a central issue on the hearing before this Court.
“In a prosecution of a person for an offence under section 13 for refusing or failing to comply with the requirement to provide 2 specimens of his breath, it shall be an defence for the defendant to satisfy the court that there was a special and substantial reason for his refusal or failure and that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with the requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine”.
2.4 The trial judge also noted that both sides had sought to place reliance on the decision of the High Court in DPP v. Redmond Cabot (Unreported, High Court, O Caoimh J., 20th April, 2004). In addition the Director sought to rely on DPP v. Patricia Behan  JIC 0304 for the proposition that the offence in question, being an offence under s.13 of the 1994 Act of failing to provide samples of her breath, was a strict liability offence with a limited defence. It will be necessary to refer to those cases in due course.
2.5 As appears from para. 6 of the case stated the trial judge came to the view that the case law (and in particular Cabot) established the following:-
2.6 The trial judge then went on to note that no Irish authority was cited by either side on the question of what might constitute special and substantial reasons. However the trial judge took the view that any reason which, as a matter of fact, interfered with the physical capability of the person concerned to give two samples of their breath must necessarily constitute a special and substantial reason for the failure. On that topic the trial judge concluded that since “the offence is one of strict liability, if a person cannot, by virtue of a physical ailment, provide the sample, should that constitute a special and substantial reason”? The trial judge’s conclusions on the legal issues appear from paragraph 9 of the case stated and are in the following terms:-
"(a) That where a defence under s.23 of the Act of 1994 is raised by an accused, it is necessary for a judge, firstly, to establish whether there was indeed a special and substantial reason for the refusal or failure to comply with the requirement to provide two specimens of breath;
(b) That in order to avail of a defence under s.23 of the 1994 Act (a different position from previous legislation) the accused also has to satisfy a court that he complied with a lawful requirement under s.13(1)(b) for a specimen of blood or urine, if such a requirement is made;
(c) That if a blood/urine requirement is made subsequent to a failure to provide two breath specimens, there is no obligation on the Gardai at that time to inform the accused that his failure to comply with the requirement under s.13(1)(b) would consequently also disqualify him from relying on a section 23 defence in relation to the failure to provide two specimens of his breath under section 13(1)(a);
(d) The final conclusion, which is essentially the answer Mr. Justice O Caoimh gave to the first question posed by Judge Hamill in the Case Stated, is surely unremarkable, because the Gardai are required by law to inform a person at the time the requirement made under Section 13(1)(b) that failure to comply with it is an offence. This may, of course, result in the Accused being guilty of two separate offences on the one occasion but Mr. Justice O Caoimh clearly believed that did not in any way impinge on the requirements of constitutional fairness.”
2.7 Arising from that analysis and noting that the Director wished to have the proper interpretation of the relevant legislation clarified by this Court, His Honour Judge O’Sullivan stated a case where the opinion of this court on the following issues was sought:-
"(a) That the clear wording of s.23 combined with the interpretation of the word "requirement" by Mr. Justice O Caoimh in the Redmond Cabot decision means that an accused, in order to avail himself of the defence under s.23, must give his blood/urine sample as soon as practicable after his failure to give his breath sample only if required by the Gardai to give such a blood/urine sample under s.13(1)(b). Assuming I am right at (b) below, any other interpretation would have the strange effect of depriving the defendant of a defence under s.23 merely because the Gardai have chosen not to make any requirement of him under section 23(1)(b).
(b) Equally, the words in s.23 "or offered, but was not called upon to comply", cannot, in my view, refer to a voluntary act by the accused. This is surely inconsistent with the words "to comply" as compliance is, in essence, the carrying out of a wish or a command of a third person. It is arguable that the section refers to a situation where the accused person offers to comply with a requirement but for some reason, such as, for example, the unavailability of a doctor, it is not possible to process the requirement and consequently he is not called upon to do so. This also strains the interpretation of the word "offered" and requires clarification."
2.8 The first question concerns whether, on the facts found, it was open to His Honour Judge O'Sullivan to find that there was a special and substantial reason for failure to provide, within the meaning of s.23, present in this case. The second and third questions concern whether, if there was such a special and substantial reason, Ms Cagney is entitled to rely on the section in circumstances where she undoubtedly did not comply or offer to comply with the provisions relating to a specimen of blood or urine but where it is accepted that she was not asked so to do. I turn first to the question of the meaning of special and substantial reason.
"(a) Was I correct on the facts found by me in holding that a special and substantial reason existed for the failure of the accused to provide a sample of breath?
(b) If the answer to (a) is 'yes', is the accused entitled to an acquittal in the absence of a requirement pursuant to s.13(1)(b) of the Road Traffic Act 1994 by a member of An Garda Síocháná following a failure to provide the required specimens pursuant to s.13(1)(a); and/or
(c) Is the accused under an obligation in order to avail of a defence under s.23 of the 1994 Act to establish that they were offered voluntarily to provide a specimen of blood or urine but were not called upon to comply."
3. Discussion on Reasons
3.1 The question which the trial judge poses for this court is as to whether he was correct, on the facts found by him, to conclude that there was a special and substantial reason. It is important to recall that the trial judge had concluded as a matter of fact that Ms. Cagney was unable, due to a transient medical condition, to give the required samples of her breath. This court is not asked to consider whether it was open to the trial judge to come to that conclusion on the evidence.
3.2 There were, of course, factors in the evidence which pointed in both directions. It was for the trial judge to weigh up that evidence and come to whatever conclusions seemed to him to be appropriate. Having come to the conclusion that Ms. Cagney was unable, due to a transient medical condition, to provide the required samples of her breath it seems to me to necessarily follow that same constitutes a special and substantial reason for the purposes of the section. If a person genuinely cannot provide the relevant samples then it is hard to see how those circumstances could not provide an appropriate basis for compliance with the first leg of the test set out in s.23, save where the person concerned has contrived to artificially create those circumstances.
3.3 On that basis it seems to me that the answer to the first question posed by the trial judge must be yes. It was for the trial judge to find the facts. Having found those facts same do provide a special and substantial reason within the meaning of s.23. On that basis it is necessary to turn to the second leg of the test being the requirement of compliance with the regime for the taking of a specimen of blood or the provision of a specimen of urine.
4. The Interpretation of Section 23 - The Arguments
4.1 The material part of s.23(1) requires, in order that a defence under that section be available, that the person “complied, or offered, but was not called upon, to comply with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine”. For ease of reference I will refer simply to the provision of a specimen of blood although obviously the alternative of urine would always be available.
4.2 The argument put forward on behalf of the Director has at least the merit of simplicity. It is said that the natural and ordinary meaning of the words contained in the provision just cited is that, in order to avail of the defence, the person must actually comply with a requirement to give blood or offer so to do and not be called upon. In that context it is necessary to make brief reference to s.13(1) which is the section which provides for the obligation to make specimens available and for the offences which flow from a failure so to do. Section 13(1) enables a Garda “at his discretion” to do either or both of requiring a breath specimen (under subsection (a)) or a blood or urine specimen (under subsection (b)). On that basis counsel for the Director argues the phrase “requirement under the section concerned” in relation to a blood sample means a requirement that a person cooperate with the provision of such a sample in accordance with the terms of s.13 on being so required by a member of An Garda Síochána. Taking that interpretation in conjunction with the presence of the phrase “or offered, but was not called upon, to comply”, it is suggested that the meaning of s.23(1) is clear. It is said, as has been pointed out, that a person must either comply with a requirement to provide blood or offer to comply but not be called upon. In either case it is said that the person concerned must instigate the matter (if the Garda does not) for if neither the person nor the Garda adverts to the possibility of giving a blood sample then, the argument goes, the person has neither complied with the requirement of the Garda nor offered so to do in circumstances where not called upon to actually comply with such a requirement.
4.3 On that basis it is said that the defence, in practice, is not available in a case where neither the person concerned nor the Garda raises the question of the possibility of giving a blood sample.
4.4 Counsel for Ms. Cagney suggests that the relevant wording is somewhat ambiguous and suggests that the use of the term “requirement” implies an obligation on the only person who is entitled to make such a requirement (that is a member of An Garda Síochána) to actually raise the question. In addition, and perhaps with greater force, counsel also drew attention to the potential unfairness of the interpretation sought to be placed on the section on behalf of the Director.
4.5 If, as the Director argues, the meaning of the section is clear and it is not appropriate to read anything into it, then it seems to follow that, no matter what the circumstances, a person will be unable to avail of the defence provided for in the section unless they know enough about the Road Traffic Acts to offer to give a blood sample (having failed to give a breath sample) so that the onus, on that interpretation, would only then pass to the Garda involved to either require them to give a sample or, by not so doing, allow the relevant person to rely on the "offer but not called upon" provision. On that basis, it is argued, no matter how meritorious the circumstances, the Garda concerned can, by simply remaining silent, and assuming that the person does not have a detailed knowledge of the Road Traffic Acts, in effect deprive the person concerned of any ability to rely on the defence contained in s.23.
4.6 Against that general argument counsel for the DPP makes a number of points. First it is said that the Gardai are never under any general obligation to inform persons as to defences which might be open to them in respect of crimes under investigation. Second it is suggested that a person is always entitled to take legal advice while in a Garda station and that it is, therefore, open to a person in Ms. Cagney’s position, who is unable to give a breath sample, to take legal advice as to what they should do next. Third it is said that it is not open to Ms. Cagney to make any argument based on unfairness which goes beyond the facts of her case including the fact that she did not alert the Garda concerned to any medical condition which might have prevented her from giving a breath sample. On that basis it is argued that the Gardai could have no obligation to anticipate that a person might wish to rely on s.23 (and, indeed, to guess the basis upon which such reliance might be sought to placed) and thus be alerted to the fact that it might be appropriate to advise the person concerned of the possibility of offering a blood sample. Finally it was emphasised that the wording of the section, on the Director’s submission, did not require any obligation on the part of the Garda to alert the person concerned to the possibility of giving a blood sample. It is said that reading in such an obligation could only occur if it were necessary to save the section from unconstitutionality. On that basis it is suggested that the fact that the section might, in some circumstances, be considered unfair is insufficient. Emphasis was placed on the fact that there are some "pure" absolute liability offences to which no defence lies. Against those submissions it is, in my view, first appropriate to turn to the limited amount of authority on the interpretation of s.23.
5. The Jurisprudence
5.1 The first case to be considered in Cabot. In that case a point very similar to that at issue in these proceedings arose. Judge Hamill, who was the judge of the District Court in the Cabot case, stated a case to the High Court which asked whether it was incumbent on a relevant member of An Gárda Síochána to inform an arrested person "that a special and substantial reason for such refusal or failure will not of itself afford a defence to a prosecution for refusing or failing to provide such a breath specimen unless …" the person concerned complied with the obligation to offer a blood or urine sample.
5.2 Having considered the case stated and the arguments, O Caoimh J. came to the following conclusions:-
There remains the question whether there is an obligation on the member of the Garda Síochána concerned to inform the arrested person that a special and substantial reason for such refusal or failure will not of itself afford a defence to a prosecution for refusing or failing to provide such breath specimens, in light of the further provisions of s.23(1) of the Act of 1994. I am not satisfied that there is any such requirement as the requirement to date has been for a member of An Garda Síochána to advise someone that failure to comply with the requirement under subsections (1)(a) or (1)(b) may constitute an offence punishable at law. I do not consider that there is any obligation on the member concerned to advise an arrested person as to what defence or defences may be open to the arrested person in the event of a subsequent prosecution. I am not satisfied that any requirement of constitutional fairness imposes any such obligation as contended for by counsel on behalf of the accused in this case."
"It is clear from the wording of ss. 13(2) and (3) that the defences arising under s. 23 may arise either in the case of a failure or refusal to comply with a requirement either under subs. (1)(a) or (1)(b). It is clear, however, from the provisions of s. 23(1) that it is not in itself sufficient to show that there was a special and substantial reason for his refusal or failure to comply with a requirement to provide 2 specimens of his breath as the subsection imports a fresh requirement following the conjunctive ‘and’ to the effect “that, as soon as practicable after the refusal or failure concerned, he complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.”
5.3 I am not sure that the other cases referred to on behalf of the Director really add very much to the argument. It is true that in DPP v. Finnegan  IEHC 347 Clark J. did suggest that a "special and substantial reason for being unable to provide specimens of breath can only be a defence when the arrested person is offered to provide blood or urine". However, the focus of Finnegan was concerned with an argument as to whether a complaint on behalf of the accused that the gárda in question might not have had a reasonable suspicion sufficient to invoke the requirement to provide a specimen could be a special and substantial reason.
5.4 It is, however, also necessary to make some reference to the jurisprudence of this Court in respect of the obligation to give a warning to a person who is required to provide a sample under the Road Traffic Acts to the effect that failure to provide a legitimately requested sample can amount to an offence. The case law stretching from DPP v. McGarrigle (reported as an appendix to Brennan v. D.P.P.  1 ILRM 267 at p.271) to DPP v. Mangan  IESC 40 makes clear that there is such an obligation although the latter cases, most particularly Mangan, were concerned not so much with the obligation itself but as to the form in which the warning needed to be given.
5.5 It is important to emphasise that there is nothing in the Road Traffic Acts themselves which require, as a matter of statute, that any such warning be given. However, it is clear from the line of authority to which reference has been made that, at least in the circumstances then under consideration, this Court was prepared to imply in such an obligation. It follows that, at least at the level of principle, it is possible that there may be obligations placed on members of An Gárda Síochána who are involved in applying the relevant provisions of the Road Traffic Acts, to inform persons of the consequence of failure to act. Those cases were, of course, concerned with a situation where a party was being required to give a sample or specimen, where failure so to do amounts to an offence and where it was held that such circumstances amounted to a significant departure from the normal position which pertains in respect of accused persons being that they are not obliged to do acts which might incriminate themselves.
5.6 Against the background of that jurisprudence it is necessary to turn to the key issues which arises in this case which is as to the proper interpretation of the relevant provisions of s.23 and whether it is necessary, in substance, to read into those provisions an obligation on the part of the gárda concerned to alert a person to the need to offer a blood or urine sample in order to be able to avail of the defence under the section.
6.1 The first point to be considered is the natural and ordinary meaning of the words set out in s.23. It should be recalled that the trial judge drew an inference from the presence of the word "requirement" in the text so as to infer that there was an obligation on the only person who is in a position to make the relevant requirement (being a member of An Gárda Síochána) to raise the issue. The section does not, of course, specifically state that a person is required to make an offer to provide a blood sample. Rather it is suggested that such an obligation (at least in the absence of the gárda concerned raising it of his own volition) is to be implied from the fact that there is, it is said, an obligation to comply with the requirement (or to offer and not be called upon) and that the only way in which the gárda concerned can be obliged to make a requirement is if there is an offer. There is, in my view, logic in the analysis advanced by counsel for the Director on that point. While the section might, it has to be said, be clearer it does seem to follow from the fact that one of the two ways in which the section can be relied on is by offering and not being called upon to provide a blood sample, that an offer must be made so as to place the gárda in a position where he must, in order to avoid the person being entitled to rely on that provision, actually make a requirement.
6.2 On that basis I am satisfied that if there were no other factors at play the appropriate literal construction of s.23 would be one which had the effect, in substance, of requiring the person concerned to offer a blood sample at least where the gárda in question does not broach the question of giving a blood sample first. However, it does seem to me that there are other factors at play in this case.
6.3 In my view there would be serious questions as to the consistency with constitutional rights of an absolute offence of failing to provide a breath sample to which there was no defence based on inability or incapacity. While there would be a an obvious connection between a failure to provide a breath sample and the question of drunk driving, it must be open to very considerable doubt as to whether an absolute offence, allowing for no defence based on inability or incapacity, would interfere with the rights of a potential accused to as little extent as was reasonably practicable so as to attain the end of the proper prosecution of those who drive drunk.
6.4 On that basis it seems to me to be appropriate to approach this question, having regard to the nature of the offence in this case, on the basis that some form of defence based on an actual and non contrived inability or incapacity is one which is constitutionally mandated.
6.5 It must be recalled that there was an important constitutional backdrop to the decision of this Court to find inherent in the Road Traffic Acts a requirement to warn persons required to give a sample as to the consequences of failure so to do. That constitutional backdrop was the fact that persons, ordinarily, are not ordinarily obliged to take steps which might involve or require such persons to provide evidence or materials which might be relied on in a prosecution brought against them. The requirement, under pain of criminal penalty, to provide a sample which might have the effect of helping to establish an offence of drunk driving, was, therefore, a deviation, albeit a permissible one, from the normal constitutional regime. Against that backdrop this Court considered it necessary to hold that there was an obligation to inform even though nothing in the wording of the relevant legislation expressly provided for such a requirement.
6.6 It seems to me that like considerations apply in this case. I agree with the submission of counsel for the D.P.P. that there is, ordinarily, no obligation on an investigating gárda to alert a person under suspicion of any possible defences which might lie to the offence under investigation. However, where, as here, legislation, for reasons of constitutional necessity, acknowledges that it is appropriate to make provision for persons who may not have the ability or capacity to give a breath sample, it seems to me that it would be an insufficient vindication of the rights of persons with incapacity to rely on such a defence if they could lose the entitlement so to rely out of ignorance.
6.7 There is a further argument which points in the same direction. In the vast majority of cases where a person is being questioned by gárdaí in respect of an offence any defence which may be available to the accused will derive from the underlying circumstances surrounding the events said to constitute the crime in question. Defences such as, for example, provocation arise out of the events leading up to an assault or other similar crime of violence. Likewise, a defence of, for example, honest belief or the like which might be available in relation to some property related crimes stems from the state of mind of the accused at the time of the commission of the alleged offence. It is true that a person may be placed at some tactical disadvantage if, in the course of giving an account under questioning by the gárdaí, no mention is made of facts which might provide defences such as provocation or honest belief. In those circumstances, if such a defence was run at the trial and in particular if evidence were to be given by the accused of provocation or honest belief, the failure to mention such matters at an earlier stage when being questioned by the gárdaí might, in an appropriate case, be used by the prosecution to seek to question the credibility of an account given at the trial but not earlier mentioned. However, the important point to emphasise is that a party is not precluded in any way as a matter of law from relying on a defence such as provocation or honest belief or the like simply because the party concerned did not mention the facts on which such a defence might be based when questioned by gárdaí. Such a defence can still be run at the trial and it would, in those circumstances, be a matter for the jury to assess the credibility of the defence having regard to all of the evidence including any explanation which might be tendered by the person in question as to why an account of the facts on which that defence was based had not been given at an earlier stage.
6.8 The situation with which this Court is concerned in this case is, however, different. A failure to offer a blood sample deprives the accused of a defence under s.23 as a matter of law. Given that fact and the constitutional backdrop to the defence based on inability or incapacity to which reference has already been made, it seems to me that the defence provided for in s.23 is in a very different category to most of the defences which arise in the general context of the criminal law.
6.9 In those unusual circumstances it seems to me that there is an obligation on a member of An Gárda Síochána, either when giving the original warning required by the line of authorities starting with McGarrigle or, if not then given, after a person has failed or refused to give a breath sample, to alert that person to the fact that, in order to rely on a defence of special and substantial reason for their failure or refusal, the person concerned must offer to provide blood or urine. It seems to me that, in circumstances where such a warning is not given in an appropriate and reasonably understandable way, the prosecuting authorities will be precluded from seeking to argue that the person concerned does not comply with the second leg of the test set out in s.23. It would, of course, even in those circumstances, always be open to the prosecuting authorities to suggest that the person concerned did not have a special and substantial reason for failure or refusal in the first place. The absence of an appropriate warning would not preclude the prosecution from resisting a defence under s.23 on the basis that there was, in truth, no special or substantial reason.
7.1 For the reasons already indicated it seems to me that the first question must be answered yes.
7.2 That being so it is necessary to answer the second question. The true answer to the second question is that an accused who satisfies the trial judge that he or she has a special and substantial reason for failure or refusal to provide a breath sample is entitled to an acquittal in the event that the accused concerned is not warned or informed by a member of An Gárda Síochána that a failure to offer a blood or urine sample will preclude such person from being able to rely on a defence of having a special and substantial reason for failure or refusal. For the avoidance of doubt such warning or information can be given as part of a general warning in advance of the requirement to provide a breath sample being made in the first place or can be made subsequent to a failure or refusal to provide the breath sample concerned. For the avoidance of doubt it should be emphasised that the absence of such warning or information does not entitle an accused to an acquittal unless the accused has first satisfied the trial judge of the existence of a special and substantial reason for failure or refusal.
7.3 It seems to me that the substance of the third question is also dealt with by the answer to the second question just given.