The High Court has struck out proceedings brought by Giles Kennedy challenging the constitutionality of a law concerning failure to provide a breath sample at a Garda checkpoint. The court ruled that he lacked standing to seek the declarations he requested, because findings in his criminal proceedings did not show that his hearing impairment caused his roadside failure.
Mr Justice Tony O’Connor delivered the judgment on 14 June 2018. Kennedy sought declarations that section 12(3) of the Road Traffic Act 1994, as amended, was inconsistent with the Constitution and incompatible with the European Convention on Human Rights.
Kennedy was stopped on East Wall Road in Dublin on 25 April 2007 and charged with separate offences relating to failure to provide a breath sample at the roadside and at a Garda station. The Circuit Court later granted a direction on the station charge after he offered to provide a blood or urine sample shortly before being charged. It convicted him of the roadside offence and fined him €3,000, with three months to pay and 14 days’ imprisonment in default.
The District Court and, on appeal, the Circuit Court heard evidence about Kennedy’s impaired hearing. The Circuit Court found that it did not prevent him from understanding what was required at the roadside. The High Court said those findings meant he could not rely on a hypothetical defence that might apply if a person’s inability to hear caused a failure to provide a sample. The judge said a constitutional challenge must be based on the effect of the law on the claimant’s own rights, rather than the possible rights of another person.
The defendants also argued that the claim should be struck out because Kennedy had not raised it in earlier judicial review proceedings, and that continuing the case was an abuse of process. The judge said the affidavit evidence was insufficient to determine whether the proceedings had an illegitimate purpose. Had that issue needed a decision, he would have preferred to hear Kennedy explain why he had not raised the constitutional and human-rights claims earlier.
The court did not decide those additional arguments. It struck out the proceedings in their entirety for failing to disclose a reasonable cause of action, because standing was absent and the declarations sought were the only relief claimed. The judgment does not determine whether section 12(3) is constitutional or compatible with the Convention.