The High Court ruled that the fact a nominated solicitor had not been contacted before a blood sample was taken did not, by itself, make the resulting evidence inadmissible or justify dismissing a drink-driving prosecution. It also ruled that a photograph taken during detention without the statutory authorisation did not, by itself, make the detention unlawful or require the later evidence to be excluded.
The judgment, delivered by Ms Justice Donnelly on 17 December 2014, arose from a consultative case stated by Judge Mary Devins. The District Judge asked the High Court for its opinion on two questions of law during the prosecution of Martin Parker. The High Court answered those questions; it did not decide whether Parker was guilty or determine the ultimate admissibility of evidence at trial.
The case stated recorded that Parker was arrested at 3.17pm on 22 February 2011 on suspicion of drink-driving and brought to Ballinrobe Garda Station. He requested that his solicitor and GP be contacted. The custody record named the solicitor as “John Dillon”; Parker said he had requested “John Dillon Leetch”. A Garda testified that he called “John Dillon’s” office and was told the solicitor was unavailable, but he did not speak to the nominated solicitor. The High Court noted that the District Judge had made no express finding about which solicitor Parker requested or whether the office had in fact been contacted.
A doctor arrived at the station at 5.03pm. After Parker elected to provide a blood sample, the doctor took one at 5.13pm. The judgment records that the analysis certificate showed 252mg of alcohol per 100ml of blood. Justice Donnelly said the statutory duty to provide a blood or urine sample did not give Parker a legal choice about whether to provide a sample. On the facts and findings in the case stated, the earlier decisions on forensic samples remained applicable after the Supreme Court’s decision in *Gormley and White*. The court’s answer was limited: the lack of prior contact with the nominated solicitor did not, by itself, justify exclusion or dismissal. The trial court retained responsibility for admissibility under the applicable principles, and other circumstances, including prejudice or an egregious constitutional breach, could raise separate issues.
The second question concerned a photograph taken at 4.10pm with Parker’s written consent. The Garda who took it had not obtained authorisation from a sergeant or higher-ranking member under section 12 of the Criminal Justice Act 2006. The High Court said the consent provided a lawful basis for taking the photograph. It also found that the photograph did not prolong Parker’s detention or give rise to the blood-sample evidence. The court therefore answered that the lack of statutory authorisation alone did not make the detention unlawful or unconstitutional, exclude later evidence or warrant dismissal. It said the case stated did not contain findings needed to decide other factual arguments raised at the hearing.