The Court of Appeal has rejected the Director of Public Prosecutions’ appeal against an order quashing a Circuit Court decision in a drug-driving case. The appeal concerned whether the Circuit judge had refused an application to dismiss the case because he treated a Garda’s reference to Road Traffic Act offences as also covering the separate drug-driving offence in section 4(1A).
The case arose after Conor McGuinness was stopped at a Garda checkpoint on 7 May 2021. Garda Niall McIntyre noticed a strong smell of cannabis in the car. McGuinness said his girlfriend had smoked cannabis in it earlier that day. A search found a bag of cannabis, and an oral-fluid test indicated cannabis. The Garda required a blood sample, which tested positive for cannabis above the statutory limit.
McGuinness was convicted in the District Court of driving with excess cannabis in his blood, fined €200 and disqualified from driving for 12 months. He appealed to Trim Circuit Court. After the prosecution evidence, his solicitor sought a direction dismissing the case, arguing that the evidence did not establish the statutory conditions for requiring the blood sample. The Circuit judge refused the application and upheld the conviction.
The High Court later granted an order of certiorari quashing the Circuit judge’s decision. The DPP appealed. The Court of Appeal, in a judgment delivered by Ms Justice Hyland, said the appeal was narrow: the DPP did not challenge the High Court’s conclusion that a reference to sections 4(1) to (4) could not be treated as including section 4(1A).
The Court of Appeal found the Circuit judge had rejected the dismissal application on that basis alone. The hearing transcript showed that the DPP’s argument before the Circuit judge was that the Garda’s reference to sections 4(1), (2), (3) and (4) included section 4(1A). The Court of Appeal said the DPP’s alternative argument—that the required opinion could be inferred from surrounding evidence—had not been pleaded and was not the basis on which the Circuit judge ruled. It upheld the High Court’s order and dismissed the appeal.
The judgment also addressed, in obiter remarks, whether a Garda’s opinion under section 13B(1) can be proved by inference. The court disagreed with the High Court’s view that it could not: it said the existence of the opinion is a fact that may be proved by direct or circumstantial evidence. But it stressed that an opinion formed for arrest under section 4(8) is distinct from the opinion required under section 13B(1), which concerns the specific offence in section 4(1A). The court’s remarks on inference did not alter the result of the appeal.