The Court of Appeal ruled that two breaches of Garda interpreter regulations did not make a man’s detention unlawful, but left the trial judge discretion to decide whether breath-sample evidence should be admitted.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 11 November 2020, answered a consultative case stated from Dublin Circuit Criminal Court. It concerned Vladimir Malai, who had pleaded not guilty to a charge alleging that he drove with a breath-alcohol concentration above the legal limit. The appeal court did not decide the charge or finally determine whether the sample evidence was admissible.
The District Court had found that the member in charge at Irishtown Garda Station had apparently decided that Mr Malai did not need an interpreter, but had neither told him that decision and its reasons nor recorded the decision and any response in the custody record, as required by the 2013 Regulations. The trial judge observed that Mr Malai appeared to rely on an interpreter during the hearing, but made no finding that he had inadequate English during his detention or that the member in charge had failed to assess whether an interpreter was needed.
The Court of Appeal confined its answer to those specific breaches. It said there was no basis to find the detention unlawful on that account. It also held that the recording and notification failures were administrative breaches of the Regulations, but did not, in the circumstances referred to the court, amount to a breach of constitutional rights.
The court said the trial judge must apply ordinary principles governing evidence obtained in a context involving illegality but no constitutional breach. That involves considering the circumstances and the actual effect of the procedural error, including any unfairness, prejudice or detriment. The court found no causal link between the two breaches and the breath evidence: Mr Malai was required to provide a sample and did so. It said that lack of a link weighed in favour of admission, but did not decide the admissibility question itself; the trial judge retained discretion to admit or exclude the evidence after considering all relevant factors.
The court expressly did not decide cases where a person needed an interpreter but was denied one before trial, where the member in charge did not consider the need for interpretation, or what should trigger such an assessment. It also did not decide the case on a finding that Mr Malai could not understand the breath-sample requirement.