[Update 13/5/16: This decision has been overturned by the Court of Appeal. Read more here.]
A High Court decision delivered on Monday has thrown some drink driving prosecutions into doubt. The Government changed the law on Tuesday in an attempt to solve the problem, but what is the status of existing drink driving prosecutions?
The decision on Monday (DPP v. Avadenei) was the result of a consultative case stated – a procedure where a judge dealing with a specific case can refer a question of legal interpretation to the High Court for guidance. The question was whether a breath alcohol test result provided in English only was evidence which could be used to convict someone of drink driving. The High Court ruled that it was not.
Breath alcohol tests are carried out in Ireland by trained Gardaí using Evidenzer machines manufactured by a private sector supplier (Nanoplus). An arrested driver suspected of drink driving is required to give breath samples by blowing into the apparatus which then produces a result contained in a printed document.
The Road Traffic Act 2010 dictates the procedure that must be followed by Gardaí when carrying out breath alcohol tests. It requires that the test result, known as a section 13 certificate, must be both “duly completed” and in the “prescribed form”. The form of this certificate is prescribed by the Minister for Transport and the relevant form at the time was clearly a single form in two parts: one part in English, followed by an identical part in Irish.
Evidenzer machines are programmed to print the test result in the format of a section 13 certificate and even though, according to a Garda witness in the case, the machines are capable of producing certificates in both English and Irish, in practice the certificates are printed in one language only. When asked whether a certificate produced in English only is “duly completed”, the High Court ruled that it is not.
[T]he document produced by the Evidenzer machine in this case corresponds to the form at pp. 3-4 [the English form] of the S.I. but not pp. 5-6 thereof [the Irish form] … it is not evidence at all and cannot be admitted.
Most drink driving prosecutions use such certificates to establish that the driver had consumed alcohol, so in the absence of other evidence available to establish guilt the prosecution must fail.
Media reports have referred to this as a “loophole” but there is a good reason for decisions like this, based on the rules of evidence, which were highlighted in the judgment by quoting from an earlier case:
[F]rom the earliest times when drunk driving was defined by reference to alcohol concentration, the relevant legislation provided for the use of a certificate to prove such alcohol concentrations. However, it is important to emphasise that such a certificate would not, in an ordinary case and in the absence of enabling legislation, be evidence. It is only because the statutory regime permits such a certificate to be given as evidence that it is admissible at all. Thus compliance with the statutory regime is in the nature of a condition precedent to the admissibility of the evidence in the first place, for in the absence of such compliance, the certificate simply would not be evidence in the ordinary way.
The Minister for Transport signed a statutory instrument on Tuesday to change the law and to provide that a section 13 certificate can now be furnished in either English or Irish and that a single language certificate will satisfy the requirements of the Road Traffic Act.
This change does not apply to any existing prosecution, so cases involving breath alcohol tests for alleged offences occurring before 22 September 2015 will be dismissed. However, while it is not yet clear how the Director of Public Prosecutions will react to the judgment, it has been reported that an appeal is being considered. If this happens, the DPP and Gardaí may seek to adjourn all pending breath alcohol cases until an appeal is finalised.
It should be noted that the judgment has no relevance to drink driving prosecutions which involve blood or urine tests, as the certificates produced in for cases by the Medical Bureau of Road Safety have always been in both English and Irish. Similarly, drug driving cases are not affected as breath testing is never used in such prosecutions.