The Supreme Court has upheld the dismissal of a charge against Paul McCrea for refusing to provide breath specimens at Blanchardstown Garda Station in June 2007. It held that the District Court judge was entitled, on the facts found, to conclude that Mr McCrea had not received reasonable access to a solicitor.
The Director of Public Prosecutions appealed after the District Court dismissed the charge. The High Court had ruled on a Case Stated appeal in January 2009; the Supreme Court judgment, delivered by Mr Justice Hardiman on 9 December 2010, considered the prosecution’s further appeal.
Mr McCrea had been arrested and brought to the station at 2.18am. After a delay while the station waited for a trained operator, Garda Synnott required him at 2.54am to provide a breath specimen using an intoxilyser machine. He asked to speak to a solicitor. The District Court judge found that Garda Synnott refused because she mistakenly believed she could not make another specimen requirement if the procedure was paused to allow a consultation. The State accepted that she was mistaken and that a further requirement could have been made after time for consultation.
The custody information given to Mr McCrea said he could consult a solicitor at any time while in custody and that not using that right when first informed of it would not prevent him from asking later. The Supreme Court noted that the State did not contest a breach of the custody regulations, but argued that the refusal was reasonable despite the officer’s error.
The Supreme Court did not decide the broader question of whether the constitutional right of access to a solicitor applies to someone arrested solely for a breath test. It said the case could be resolved on its particular facts and the failure to follow the regulatory procedure. The Court also stressed that it was reviewing an appeal by Case Stated: it was not deciding whether it would have made the same factual findings itself.
The Court concluded that the District Court judge was entitled to find that Mr McCrea could reasonably rely on what gardaí had told him, that legal advice would have benefited him, and that he had not had reasonable access to it. The dismissal therefore stood. The judgment said it would be wrong to speculate about what the result might have been on different facts.