The High Court upheld the dismissal of a charge against Paul McCrea for refusing to provide breath specimens, ruling that Garda evidence of the refusal had to be excluded after his request to consult a solicitor was refused during the breath test procedure.
The judgment, delivered by Mr Justice John Edwards on 28 January 2009, arose from a prosecution appeal by way of Case Stated. The court answered “yes” to both questions referred by the District Court: whether the accused should have had access to a solicitor before the procedure was completed, and whether the District Judge was correct to dismiss the prosecution on that basis.
The charge related to events at Blanchardstown Garda Station on 9 June 2007. The case stated recorded that Garda Gillian Synnott required McCrea to provide two breath specimens under section 13 of the Road Traffic Act 1994. According to the prosecution evidence summarised in the case, McCrea asked to speak to a solicitor after the requirement was made. Synnott told him he could do so after complying, believing that interrupting the intoxilyser procedure would prevent her making another lawful requirement. McCrea refused to provide a sample, and the machine timed out.
The District Judge found that Synnott had refused access because of a mistaken belief about the law and dismissed the charge. On appeal, the prosecution argued that the refusal had been passively observed, that no evidence had been actively gathered during any breach, and that there was no causal link between the refusal of access and the accused’s conduct. It also argued that Synnott had acted in good faith and that extraordinary circumstances justified admitting the evidence.
Mr Justice Edwards held that the refusal of access was a deliberate and conscious decision, even though it was made in good faith. It rendered McCrea’s detention unlawful from that point. Applying the strict exclusionary rule then governing evidence obtained during unlawful detention, the judge rejected the arguments that the Garda’s lack of moral culpability or the passive observation of the refusal made the evidence admissible.
The court said the breath test process depended on the accused remaining in lawful custody. Once his detention became unlawful, he was entitled to leave and was no longer obliged to comply with the earlier demand. The judge also said a causal link between the rights breach and the evidence did not need to be established. He considered the District Judge’s view—that access to a solicitor could have made a difference—to be the right approach, though that issue had become academic under the cases he applied.
The High Court therefore affirmed the District Judge’s dismissal. It did not determine the underlying charge of refusing to provide specimens; the charge had already been dismissed, and the appeal concerned the legal basis for that decision.