Judgment: 2014-03-28 · Court archive

High Court refuses bid for full Garda breath-test circular in drink-driving case

The court held that the redacted legal analysis was not shown to be relevant to the applicant’s trial, and did not rule on whether it was privileged.

High Court · [2014] IEHC 200

Who, what, where, when and why

Who
  • Giles Kennedy (Applicant)
  • Margaret Heneghan (Respondent)
  • Iseult O’Malley (Judge)
  • James Smith
What

The court held that the redacted legal analysis was not shown to be relevant to the applicant’s trial, and did not rule on whether it was privileged.

Where

Places mentioned in the report

  • Store Street Garda Station
  • Store Street
When

Judgment:

Why

Reasons reported in the judgment

The High Court has refused a man’s application to obtain an unredacted Garda circular about breath-testing procedures, finding he had not shown that the withheld passages put his right to a fair trial at real risk.

The High Court has refused a man’s application to obtain an unredacted Garda circular about breath-testing procedures, finding he had not shown that the withheld passages put his right to a fair trial at real risk.

Giles Kennedy was convicted in the District Court of two offences under the Road Traffic Act 1994: failing to provide a preliminary breath sample at a checkpoint and failing to provide two breath specimens at Store Street Garda Station. He appealed those convictions. The judicial review concerned disclosure for the continuing prosecution of the station charge and a preliminary disclosure ruling by Judge Margaret Heneghan. The High Court judgment does not decide the appeal or the underlying charge.

The prosecution evidence was that Kennedy made seven attempts to provide a preliminary sample, but the machine registered insufficient volume. At the station, Garda James Smith said Kennedy placed his mouth around the Intoxilyser mouthpiece several times but did not blow, and the machine recorded no pressure. Kennedy later asked whether he could provide a blood or urine sample.

Before the District Court trial, Kennedy received an older version of operator training notes. An updated version, disclosed before the Circuit Court appeal hearing, removed an instruction that had referred to two further opportunities to complete the breath-test cycle. It was accompanied by an internal Garda circular. The disclosed portion said an operator could require two specimens; other passages were redacted as legal advice from Garda Headquarters.

Kennedy argued that the full circular could help establish whether Garda members had been instructed not to allow further attempts, potentially restricting their discretion. He said the redactions prevented effective cross-examination and risked an unfair trial. The respondents maintained that the withheld legal analysis was irrelevant and privileged.

Justice Iseult O’Malley said the updated notes and the redacted circular gave the defence a basis to question the Garda witness about whether he followed the circular or made his own decision. The lawfulness of that decision could be argued at trial. The reasons behind the Garda CPD section’s legal analysis, she concluded, were not relevant to that inquiry.

The judge found that Kennedy had not demonstrated that the redacted passages were relevant to a trial issue in a way that meant he could not receive a fair trial without seeing them. She refused the reliefs sought, including orders to stop the prosecution and to compel disclosure of the full circular.

The court expressly did not decide whether the circular attracted legal professional privilege. Justice O’Malley said that, if required to rule, she would be inclined to accept Kennedy’s argument that the advice concerned Garda investigative actions rather than litigation, but no ruling on privilege was necessary to dispose of the case.

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