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1. This is an appeal by the Director of Public Prosecutions (hereafter the DPP) against a judgment and order of the High Court (Kinlen J.) delivered and made on the 2nd of April 1998, whereby the learned High Court judge quashed an order of the Dublin Circuit Court made on the 6th of March 1997 which in turn had affirmed a conviction of the Applicant by the Dublin Metropolitan District Court on the 18th May 1995 for the offence of driving a mechanically

2. The evidence before the High Court as to the proceedings in the Circuit Court relevant to the issues in the High Court and in this court is to be found in paragraphs 5 and 6 of an affidavit sworn by the applicant’s solicitor Sean Costello, on the 20th of March 1997: in paragraphs 2 and 3 of an affidavit sworn by the arresting Garda, Paul Fanning, on the 11th July 1997: a replying affidavit sworn by Mr. Costello on the 25th of July 1997 and in paragraph 3 of an affidavit sworn on the 3rd October 1997 by Patrick Geraghty of the Chief State Solicitor’s Office. The applicant did not swear an affidavit relevant to the issues in these proceedings, nor did he give any evidence in the Circuit Court relevant to the issues in the High Court and in this court.

3. He then went on to submit that the arrest had been a lawful arrest and that it must have been quite clear to the applicant as to why he was being arrested.”

4. Paragraphs 3 and 4 of Garda Fanning’s affidavit are as follows:-

5. Paragraph 2 of the replying affidavit of Mr. Costello sworn on the 25th of July 1997 is as follows:-

6. Paragraph 3 of Mr. Geraghty’s affidavit sworn on the 3rd October 1997 is as follows:-

7. Mr. Costello suggests that I conceded that the submission made by Counsel on behalf of the appellant was correct. This is not the case, although I did indicate that counsel may have been correct. Indeed, at paragraph 7, Mr. Costello refers to the fact that counsel asked the trial judge to consider the fact that I had effectively conceded the second submission. At this point I again indicated to the court that I had not conceded the point, I merely had indicated that counsel may have been correct but that it was up to Judge Devally to decide the issue. Likewise when reference was made to an application for a case stated I reiterated that I was not conceding the point but rather that counsel may have raised a good point.”

8. The 1978 Act was wholly repealed by section 4 of the Road Traffic Act 1994. The 1994 Act was passed on the 20th April 1994 but was to be brought into operation by order of the Minister pursuant to section 1 (2). Section 4 was brought into operation for the purposes of repealing the whole of the 1978 Act on the 2nd of December 1994 by the Road Traffic Act 1994 (Commencement) (No. 2) Order 1994 Statutory Instrument No. 350 of the 1994. That same Order

9. The learned High Court judge decided the case and granted the order of certiorari mainly on the ground that there was no evidence before the learned

10. Circuit Court judge to justify his finding that there had been a valid arrest: that the learned Circuit Court judge had exceeded his jurisdiction in finding that there was a valid arrest and accordingly all subsequent procedures in the garda station were vitiated. I quote from the conclusion of the judgment of the learned High Court judge from page 10 of the typescript copy to the end.

11. The court will accordingly quash the order of the learned Circuit judge.”

12. Counsel for the DPP submitted that there was evidence and the learned Circuit Court judge was entitled to be satisfied on the evidence that the garda had formed the necessary bona fide suspicion to entitle him to arrest the applicant: that the garda did arrest the applicant and adequately told him why he was being arrested both on the roadside and in the garda station. The applicant was aware of the reason for his arrest and readily co-operated with the procedures for giving a blood specimen when asked to do so. So far as the facts of this case are concerned the requirements of section 13 (1) (b) of the 1978 Act and of the 1994 Act are identical. The learned Circuit Court judge was entitled to be satisfied on the evidence that what the garda demanded was what he was entitled to demand in the station and what he knew he was entitled

13. Counsel for the applicant made submissions regarding the arrest but the main thrust of his submissions (unlike the decision of the learned High Court judge) related to the demand for a specimen in the garda station. Counsel submitted that the statutory source of the arrest was misquoted and that therefore if the arrest was lawful at all it was lawful at common law and not pursuant to the provisions of the Road Traffic Acts. In order to operate section 13(1)(b) of the 1994 Act in the facts of this case the applicant had to have been arrested under section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act. It is not for the courts to rescue the garda from his ignorance of the law. The courts cannot attribute to the garda knowledge of one power when he is purporting to exercise a different power. To act on no evidence at all is to act

14. Counsel for the parties in the course of their submissions referred to the following authorities:-

15. First as regards the alleged concession made by the prosecuting solicitor which he disputes in the terms quoted above, the same was not accepted or acted upon by the learned Circuit Court judge. The point of law now comes before this court for decision and must be decided in accordance with law whether or not there was such a concession.

16. So far as what is commonly called drunk driving or drink driving is concerned the Garda Siochana had been operating the 1978 Act for some 16 years or so up to and including the first of December 1994. The 1994 Act wholly repealed the 1978 Act as from 2nd December 1994 but substituted for the 1978 Act very similar provisions and so far as relevant to the facts of this case, identical provisions. It is not surprising that in the first few weeks after the coming into operation of the 1994 Act provisions there should have been some mix up between the 1978 Act and the 1994 Act from time to time. If such a mix up should cause any disadvantage, and a fortiori . any injustice to any person the law would have to take such steps as would negative and rectify any such disadvantage and/or injustice.

17. In this case no question of disadvantage or injustice to the applicant arises by reason of any mix up on the part of the garda between the 1978 Act and the 1994 Act. On the facts of this case which it was open to the learned Circuit Court judge to find on the evidence adduced before him the right to arrest under section 49(6) of the 1961 Act as inserted by section 10 of the 1978 Act had been identical to the present existing right to arrest given by section 49 (8) of the 1961 Act as inserted by section 10 of the 1994 Act. Likewise the former right to demand that a specimen be provided under section 13 (1) (b) of the 1978 Act was identical to the present existing right under section 13 (1) (b) of the 1994 Act so far as the facts of this case are concerned. No question of any disadvantage or injustice to the applicant could or did arise therefore by virtue of any such mix up between the two Acts by the garda.

18. The learned Circuit Court judge was entitled to conclude on the evidence which he heard that the applicant was aware of his liability to be arrested and of his obligation under the Road Traffic Acts to provide a specimen if arrested. Furthermore the learned Circuit Court judge was entitled to conclude that the garda was aware of his power to arrest under the Road Traffic Acts and of his power to require the provision of a specimen under those same Acts and intended to exercise those powers. I do not understand counsel’s submission that the garda arrest of the applicant, if valid, was an arrest at common law and not by virtue of the Road Traffic Acts. I know of no common law right to

19. The reliance by the learned High Court judge on Quilligan’s case was in my opinion somewhat misplaced. In that case the arrest was made under section 30 of the Offences Against the State Act 1939 and was held to be a lawful arrest: the subsequent statements made in custody were held to be admissible in evidence and the direction given by the learned trial judge to the jury to acquit was held to have been wrongly given. I do not think that the Supreme Court in Derek Brennan v. Director of Public Prosecutions intended to disagree with the House of Lord’s decision in Christie v. Leachinsky [1947] AC 573 at p.587 which was quoted with approval by Blayney J. in his judgment in

20. These are judicial review proceedings not a case stated. Even if the learned Circuit Court judge erred which I do not think he did he would have erred within jurisdiction and the superior courts exercising their judicial review jurisdiction should not and do not act as courts of appeal on factual matters. I would allow the appeal and dismiss the applicant’s judicial review proceedings.