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1. The Respondent was represented by Aidan Crowley, Solicitor of Messrs. Egan, Daughter & Co., Solicitors, Castlebar, County Mayo and the Prosecutor was represented by Inspector Gerry Henry.

2. The form is reproduced hereunder:

3. The Respondent was charged with an offence contrary to Section 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 as amended by the Road Traffic Act, 1995. Section 49(4) states:- “A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his breath with exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.”

4. Subsection (4) created a new form of test which permitted a member of an Garda Siochána to apply a breath test as an alternative to the tests envisaged by Section 49(2) (blood) or 49(3) (urine).

5. Section 49(5) provides that the Minister for Justice, Equality and Law Reform “may by regulations made by him vary the concentration of alcohol for the time being standing specified in subsections 2, 3 or 4 of Section 49 either generally or in respect of a particular class of persons”.

6. The procedure for following the provisions of a breath specimen under Section 13 are defined by Section 17(1) of the Road Traffic Act, 1994 and states:- “ Where, consequent on a requirement under Section 13(1)(a) of him, a person provides 2 specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen

7. The Road Traffic Act, 1994 (Section 17) Regulations, 1999, set out the form to be used for statements pursuant to Section 17 of the Act. It is common case that the requirements of Section 17 were complied with in this case.

8. The Respondent points out that the certificate which was presented to the Court shows the first breath specimen as registering 93 microgrammes of alcohol per 100 millilitres of breath. The second breath specimen gives a recording of 89 microgrammes of alcohol per 100 millilitres of breath. The certificate contains the phrase “The specimen to be taken into account for the purposes of Section 49(4) of the Road Traffic Act, 1961 is specimen two above [that is in conformity with the requirements of Section 17 of the 1994 Act]. The concentration of alcohol in the breath for the purposes of that section is 073 microgrammes of alcohol per 100 millilitres of breath.” The Respondent submits that the basis on which the figure of 073 microgrammes of alcohol per 100 millilitres of breath is correct or admissible is not identifiable in any law passed by the Oireachtas or any statutory instrument enacted by the Minister. He asserts at Court that at the end of the prosecution case the Defendant was confronted with a certificate which contained three different readings, i.e. 93, 89 and 73. It was submitted by Mr. Crowley, Solicitor on behalf of the Respondent (and the submission is repeated in this Court) that in the absence of regulations governing the calculation of the concentration of alcohol in the accused’s breath and in the absence of the Prosecutor producing any appropriate lawful authority pursuant to the Road Traffic Act, 1994, which set out a scientific formulation of the manner in which a sample of breath was calculated for the purposes of grounding a prosecution under Section 49(4) of the Road Traffic Act, 1961, that the case against the Respondent should be dismissed. It is argued that the learned District Judge is not entitled to convict the Respondent in the absence of lawful authority by way of regulations under the Road Traffic Act, 1994, or otherwise, which set out the scientific formulation or manner by which the sample of breath is to be calculated for the purpose of proving an offence pursuant to Section 49(4) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic Act, 1994.

9. Mr. Shane Murphy SC, on behalf of the Respondent, points out that, unlike the procedures under the Road Traffic Act, 1961, as amended, in relation to the receipt of blood and urine samples, the accused is not provided with a sample which he can take away for independent scientific examination in order to prepare his defence. He also submits that the Respondent, whether on his own or in conjunction with his legal advisors, is not able to identify a lawful basis for the application of any particular scientific methodology for the purposes of identifying the correct breath test results. He submits that, in the absence of any tests designated by law, the District Court is confronted with a case in which an unknown scientist or expert has created a new legal process. He also made the point that in the Criminal Evidence Act, 1992, Section 5 provides stringent conditions for the admissibility of documentary evidence, in contrast with the lack of guidance provided by the present Act. He complains, moreover, that the only relevant regulations made under the (Road Traffic Act, 1994, Section 17) Regulations, 1999, SI 326 of 99) made no reference to the application of any scientific test and the manner of the calculation of the breath test. He argues that the deployment of scientific tests or an analysis in the context of a criminal prosecution requires the prosecution to establish a lawful authority for such and that there must be some transparency about the manner in which the test is operated. It is in that context that he contrasts the lack of any reference in the Regulations to the application of scientific tests with the careful statutory scheme set out in the Animal Remedies Act, 1993. That legislation gives extensive rights to an accused person to challenge the test or analysis carried out on behalf of the prosecutor.

10. Mr. Murphy cites a passage from the judgment of the Supreme Court in The State (Healy) -v- Donaghue [1976] IR 325 where that Court referred at page 349 to a passage of Gannon J. in the High Court where the learned Judge said “ Among the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser, to be allowed to give or call evidence in his defence, and to be heard in argument or submission before judgment be given. By mentioning these I am not to be taken as given a complete summary, or as excluding other rights such as the right to reasonable expedition and the right to have an opportunity for preparation of the defence.” Mr. Murphy complains, that because of the lack of regulations setting out the scientific manner in which a breath sample is to be calculated, he is inhibited in his defence in a manner which contravenes those principles.

11. I was also referred to a passage in the case of O’Callaghan -v- District Judge Clifford [1993] 3 IR 603 where the Supreme Court considered in the context of revenue offences the implications of certificate evidence in a prosecution under the Income Tax Act, 1967, as amended. At page 612 of the report Denham J. states “Where the State seeks to prosecute offences by way of a certificate which encompasses the entire of the prosecution case of which a factor or factors (for example, the mode of service of the notice stated to have been served on the applicant herein) are not set out on the certificate then the District Court has a special duty to ensure that due process of law is applied and that the applicant has an informed opportunity if he so wishes to raise any such matter at the hearing of the case.” Counsel submitted that, on the facts of the present case, the certificate tendered by the prosecution against the Respondent contains an “imprecise and uncertain statement for a criminal trial”, to use the wording of Denham J. I was also referred to a passage in the case of DPP -v- Gilmore [1981] ILRM 102.

12. Finally I was referred to the case of Scott -v- Baker [1969] 1 QB 659. Under the equivalent UK legislation, proof of approval from the Secretary of State of the device used for the breath test was central to the successful prosecution of the offence. It was held that the approval of the device had to be proved by means other than by presumption, it being conceded that a circular letter from the Home Office purporting to have been made by direction of the Secretary of State was inadmissible to prove such approval.

13. The Prosecutor relies heavily on the provisions of Section 17 of the Road Traffic Act, 1994. Section 21(1) of the 1994 Act provides:-

14. It is conceded that the certificate is in accordance with the requirements of the Act.

15. Counsel for the Director of Public Prosecutions referred me to the case of The State (Murphy) -v- Johnston [1983] IR 235. In that case O’Higgins C.J. stated at p. 239/240: “Proof of compliance with the provisions of Part V of the Act of 1968, as it now stands, does not appear to me to be in any way necessary for a successful prosecution under Section 49 of the Act of 1961. It is sufficient to sustain such a prosecution that the certificate issued by the Bureau be “evidence of the facts certified to in it” and of “compliance by the Bureau with all the requirements which the Bureau is obliged to comply with by or under this Part.... that is to say Part III (ss . 9 - 26 ) of the Act of 1978.”

16. In my view, the facts of the instant case do not show that the accused was deprived of any of the rights mentioned by Gannon J. in The State Healy -v- Donaghue [1976] IR 235. In this case there has been no denial of the right of the accused to challenge the evidence, and in particular the certificate in whatever the appropriate manner he sees fit. That might include, in appropriate cases, cross examination of the Garda as to the accuracy and provenance of the device used, the investigation as to whether the device had been properly calibrated by the appropriate person and such other matters as might be relevant to the assessment of the accuracy of the evidence generated by the device. In this case there was no such cross-examination. Moreover there is nothing that would preclude the calling of witnesses on subpoena, if necessary to impugn the reliability of the prima facie evidence. Moreover, I do not consider either the charge on the certificate to be anyway unprecise - though no doubt it could contain more information. I was also referred to the case of DPP -v- Gilmore [1981] ILRM 102. In that case the issue was to whether the breath analyser test was sufficient to enable an arrest to be made, (per Henchy J. at 104 ....) “ two distinct types of offences were recognised by the new Section 49, the first, based on proof, by observation or by clinical tests, of an actual incapacity to drive with proper control because of an intoxicant consumed, and the second, depending not on such proven incapacity to drive properly but based entirely on chemical analysis showing a concentration, beyond the permitted level, of alcohol in the blood or urine ”.

17. Mr. Murphy submits that, in contrast with the Gilmore case, in the present case there is no clear scientific basis to establish or support the test relied on by the prosecution. The passage quoted however, does little to establish that proposition. It is clear that the regulations could have been more extensive. It is also clear as I have already stated that the certificate could have been more informative. It is true that there are no regulations under the Road Traffic Act which set out in scientific formulation the manner in which a sample of breath is to be calculated for the purpose of making out an offence. The absence of such, however, does not in my view preclude the certificate from being the prima facie evidence it purports to be. The observation of O’Higgins C J. in The State (Murphy) -v- Johnston [1983] IR 235 at 240, referring to the certificate of the Bureau in blood or urine cases, has, mutatis mutandi s, equal validity with regard to the impugned certificate in this case: