The High Court has sent back to the District Court a question about whether an accused man was properly informed of his rights while using a mobile phone in custody. It said phone use at the time rights were read does not automatically establish a breach of custody regulations.
The case arose from a charge that Colin Gillespie drove while intoxicated in Boyle, Co Roscommon, on 21 February 2010. Garda Geraldine Tormley told the District Court she saw his vehicle being driven erratically at Great Meadow, smelled liquor from the driver and arrested him. An intoxilyzer test recorded 106 microgrammes of alcohol per 100 millilitres of breath.
Garda Pauline Doherty, the member in charge, said she gave Gillespie information about his rights under the 1987 custody regulations at 4.41pm and handed him a notice of rights at 4.42pm. Gillespie testified that he was on a phone call and did not receive the oral information. Phone records showed a call lasting two minutes and 35 seconds beginning at 4.39pm. Judge Geoffrey Browne accepted that Gillespie had been on a call when his rights were being read, but reserved his decision on whether to exclude the section 17 intoxilyzer certificate and referred legal questions to the High Court.
Justice Hedigan said whether the regulations were breached depended on the circumstances and was a factual question for the District Court. The fact that phone records showed Gillespie was on a call was not, by itself, conclusive. The District Court may hear further evidence and cross-examine Gillespie before deciding whether the rights information was meaningfully communicated.
The High Court also said a trial judge may exclude evidence after a breach, but a breach does not automatically require exclusion. The key issue is whether the accused was prejudiced. Hedigan said that even if Gillespie had not been meaningfully informed of his right to consult a solicitor, he could not have been advised to refuse a breath sample he was legally required to provide. Without prejudice, a breach would not provide a basis to exclude the certificate.
The High Court did not decide whether a breach occurred or whether the certificate should be excluded. It remitted the factual question to the District Judge, who must decide whether there was a breach and, if so, whether Gillespie was prejudiced, having regard to the cited authorities.