The Court of Appeal has ruled that a Circuit Court judge hearing an appeal from the District Court cannot use section 5(6) of the Road Traffic Act 2010 to replace a conviction for being drunk in charge of a vehicle with a conviction for drink-driving.
The ruling came in a consultative case stated by a Circuit Court judge sitting in County Cavan. The judge had been hearing Simon Gordon’s appeal against his District Court conviction under section 5(4) of the Act. At the close of the prosecution evidence, the judge considered whether the evidence instead supported an offence under section 4(4), which concerns driving or attempting to drive while over the alcohol limit.
The Circuit Court judge considered that the evidence showed an attempt to drive, but did not establish the elements of the section 5 offence. He had not yet made a final decision on the appeal. He asked the Court of Appeal whether substituting a section 4 conviction would breach due process where it would be incompatible with the District Court conviction and there would be no further appeal, and whether that concern justified allowing the appeal despite evidence supporting the alternative offence.
The Court of Appeal answered both questions yes. It held that the statutory power to substitute an alternative verdict was not available to a Circuit Court judge exercising appellate jurisdiction over a District Court appeal. The court said the section’s wording did not support extending that power to an appeal, and noted that the Oireachtas had expressly given the Court of Appeal a power to substitute alternative verdicts in appeals from convictions on indictment, but had made no comparable provision for the Circuit Court.
The court also said a conviction in the District Court on one of the mutually exclusive section 4 and section 5 offences could amount to an acquittal on the other. It did not decide whether the evidence proved a section 4 offence, nor did it convict Gordon of that offence. The judgment answered the legal questions referred by the Circuit Court; it did not determine the final result of Gordon’s appeal.