The Court of Appeal dismissed James O’Keeffe’s appeal concerning a drink-driving prosecution, holding that the prosecution had to prove compliance with a statutory safeguard for blood or urine samples. It also concluded that the District Judge’s decision to question the prosecution witness after the prosecution case had closed involved only a minor procedural departure that caused no real injustice.
The appeal concerned section 18(2) of the Road Traffic Act 1994. At the time, the provision required a Garda member to offer the arrested person one of two sealed sample containers and give them a written statement that they could retain either container. The Court said the safeguard was intended to inform the person of the right to retain a sample, including the possibility of independent testing.
The defence accepted that Garda Barriscale had given O’Keeffe a sample. But the Court held that this did not establish compliance with the separate requirement to provide the written statement. Where the witness was challenged on compliance in cross-examination, the prosecution needed to prove that the statement had been given. The omission was material and could not be treated as a trivial or technical flaw.
The Court distinguished that evidential requirement from the separate question of whether the District Judge could recall the witness. The judge asked Garda Barriscale about the written statement after O’Keeffe’s solicitor argued that the prosecution had failed to provide a necessary proof. The Court said judges may recall witnesses sparingly, and that recalling a witness to fill a gap relating to the merits of a case may be improper. It considered this missing proof formal because it concerned a statutory precondition to admitting an evidential certificate, rather than the underlying drink-driving offence itself.
The Court noted that the judge had not invited submissions from both sides before addressing the witness on the point. It said the judge ideally should have heard those submissions before formally recalling her. However, considering the District Court’s working pressures and less formal setting, the Court treated the departure as minor and found it caused no real injustice. The appeal was therefore dismissed.
The judgment also noted that the Road Traffic Act 2010 retained the obligation to inform a person of the right to keep a sample, while removing the requirement that the information be given in writing.