The Court of Appeal has upheld the striking out of Giles Kennedy’s challenge to the constitutionality of a road traffic law requiring drivers to provide a preliminary breath specimen when requested by gardaí. It also rejected the State defendants’ cross-appeal, which argued that Mr Kennedy’s proceedings were an abuse of process.
Mr Kennedy had been convicted in the Circuit Court of failing to provide a specimen under section 12(3) of the Road Traffic Act 1994. In separate proceedings, he argued that the provision was unconstitutional and incompatible with the European Convention on Human Rights because it did not provide a defence based on inability or incapacity. He also sought damages.
His case relied on his claim that hearing difficulties prevented him from understanding Garda Coyne’s instructions when stopped on East Wall Road in Dublin on 25 April 2007. The Circuit Court heard evidence from Mr Kennedy, his wife and an audiologist. Judge Codd found that the hearing difficulty did not affect his failure to provide a specimen and convicted him. Mr Kennedy’s appeal against his earlier District Court convictions had also resulted in an acquittal on a separate section 13 charge.
The Court of Appeal held that the Circuit Court findings meant a defence based on inability or incapacity would not have helped Mr Kennedy. Allowing his constitutional challenge to proceed on that basis would therefore rely on the rights of others, which the court said he could not do. It reached the same conclusion on his claim for a declaration of incompatibility. The damages claim depended on those challenges and could not proceed independently.
The court said it was unnecessary to decide whether the finality of Mr Kennedy’s conviction affected his entitlement to bring the challenge. It also noted that the parties had not separately argued the Convention issue.
On the State’s cross-appeal, the court found that the later constitutional proceedings were not an abuse of process. Mr Kennedy’s earlier judicial review case concerned disclosure of a document relevant to the separate section 13 prosecution, while the current proceedings challenged section 12(3). The court said the relief sought in the plenary proceedings could not properly have been sought in the judicial review case and found no material prejudice to the State.
The appeal was dismissed, except to the limited extent that the court rejected the abuse-of-process basis for striking out the case. The cross-appeal was dismissed, and the High Court order striking out the proceedings was affirmed. The court invited brief submissions on costs within 10 days; it made no costs order in this judgment.