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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D.P.P. v. Finn [2003] IESC 11 (19 February 2003) URL: http://www.bailii.org/ie/cases/IESC/2003/11.html Cite as: [2003] 2 ILRM 47, [2003] IESC 11, [2003] 1 IR 372 |
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Record No. 252/02
Murray, J.
McGuinness, J.
Hardiman, J.
Geoghegan J.
Fennelly, J.
Between
Prosecutor/Respondent
Defendant/Appellant
[Judgments delivered by Murray J. and Hardiman J.; McGuinness J., Geoghegan J. and Fennelly J. agreed with both.]
Judgment of Murray, J. delivered on the 19th day of February, 2003.
1. This is a case stated by His Honour Judge Brian McMahon of the Circuit Court, Dublin, pursuant to the provisions S.16 of the Courts of Justice Act 1947. The learned Circuit Court Judge poses two questions of law, which I recite below, and which arise in the following circumstances as set out in the case stated.
2. The Defendant was arrested at 11.25pm on the 9th June, 2000 pursuant to section 49 (8) of the Road Traffic Acts 1961 to 1994. This permits a member of the Garda Síochána to arrest without warrant a person who in the member's opinion is committing or has committed an offence under that section, which concerns offences of driving or attempting to drive a mechanically propelled vehicle under the influence of alcohol. Where a person is arrested under that section, section 13(1)(a) provides that a member of the Garda Síochána may, at a garda station, inter alia, require the person concerned to provide, by exhaling into the apparatus for determining the concentration of alcohol in the breath, two specimens of his breath, and may indicate the manner in which he is to comply with the requirement.
3. After his arrest, the Defendant was conveyed to Dun Laoghaire garda station where he arrived at 11.40pm. The member in charge recorded his arrival and other relevant details, gave him a notice of his rights and explained them to him. The Defendant was then brought to an interview room by Garda Darren Coogan at 11.44pm. He remained with him in the interview room for a period of twenty minutes and Garda Coogan's evidence was that during the twenty minute period he kept him under observation. It would appear from the garda's evidence as recorded in the case stated, that during this period he verified that the Defendant consumed nothing orally. He observed the Defendant until 12.04am and at 12.07am he made a requirement of the Defendant pursuant to Section 13(1)(a) of the 1994 Act that he provide two specimens of his breath. At 12.08am, the Defendant, according to Garda Coogan, refused to comply with his direction to give a breath specimen. The Defendant was charged with an offence arising from that refusal.
4. According to the case stated by the learned Circuit Court Judge some twenty seven minutes elapsed between the arrival of the Defendant in the garda station and the making of the requirement of him pursuant to Section 13(1)(a) and twenty minutes of this was concerned with the Defendant waiting in the interview room while he was under the observation of Garda Coogan.
5. It appears from paragraph 4 of the case stated that Garda Coogan stated that the reason for the period of observation was that guidelines given to An Garda Síochána indicated that an arrested person should be observed for a period of twenty minutes prior to requiring a sample of breath to be given and this was done in order to ensure that the Accused did not consume any food.
6. I understand by this that the Garda Síochána verified that no food had been taken since on the case stated nothing intrusive happened and all that essentially occurred was passive observation by a garda member.
Questions and arguments of the parties:
7. In these circumstances the learned Circuit Court Judge posed two questions in the following terms:
(i) In the circumstances before me, where the evidence given was that the gardaí waited some twenty seven minutes (twenty minutes being the minimum period of observation stipulated by the Garda Síochána guidelines) following the arrival of the Accused at the garda station before any requirement was made pursuant to Section 13(1)(a) of the Road Traffic Act 1994 and that nothing prevented the gardaí from making the requirement at the time of the Accused's arrival at the station, was the Accused in lawful detention at the time the requirement was made at 12.07am?
(ii) If the answer to the above question is "No" does that render inadmissible the evidence subsequently obtained?
8. It is not in dispute that when the Defendant arrived in the garda station his detention there was lawful for the purpose of enabling a member of the Garda Síochána to require of him to provide either specimens of his breath or alternatively other specimens to a designated doctor as required by the member pursuant to Section 13(1).
9. The question is whether what occurred in the garda station infringed the defendant's legal or constitutional rights so as to render that detention at some point unlawful.
10. In the course of his submissions, Counsel for the Defendant relied on the decision of Hanna, J. in Dunne –v- Clinton [1930] I.R. 85 concerning the duties of the Garda Síochána concerning the exercise of their powers of arrest generally on a criminal charge and which has been described on many occasions by this court as a definitive statement of law in this area, although allowance has to be made for legislative changes since that decision which permit the arrest and detention of persons for purposes other than being brought before a court such as questioning in certain circumstances or, as in this case, in order to obtain a specimen of the person's breath.
11. These legislative changes do not alter the essential principles decided in the Dunne case in situations where there are no express time limits or time frames (such as 'immediately') provided for by statute. Where a statute expressly lays down time limits concerning the detention of a person in custody they must, of course, be strictly complied with.
12. Counsel for the D.P.P. submitted, inter alia, that the period of time involved was such that the requirement was made of the Accused within a reasonable time. In some cases a considerably greater period of time might have to elapse before a requirement could be made, depending on the circumstances. Such a time should not invalidate the lawfulness of the persons detention. So far as the submission of the D.P.P. founded on the power of the gardaí to arrest a suspected person within three hours after driving or attempting to drive is concerned, I agree with Hardiman, J. that this argument is wholly unfounded.
Delay
13. The decision in Dunne –v- Clinton concerns, inter alia, the duty of arresting gardaí towards a person whom they have arrested on suspicion of a felony. As regards the duty of the arresting gardaí Hanna J had this to say:-
"It is, in my opinion, clearly the law that, once a person is detained by the guards or, in other words, in custody of the guards, on suspicion of having committed the felony, it is the duty of the police officer arresting him to take him with reasonable expedition before a Peace Commissioner. He can be detained in custody only during such time as is reasonable for that purpose."
14. Later Hanna, J. went on to say "Now, what is a reasonable time after arrest? No hard and fast rule can be laid down to cover every case. It must depend on many circumstances, such as the time and place of the arrest, the number of the Accused, whether a Peace Commissioner is easily available, and such other matters as may be relevant."… "The Plaintiff in this case could have been brought before a Peace Commissioner at any time on Tuesday or Wednesday. Having regard to the law it was unreasonable delay, and therefore unlawful detention, to wait until Wednesday night."
15. These principles were applied by this court in The People –v- Walsh [1980] I.R. 303 where O'Higgins C.J. stated: -
"Reasonable expedition is required but more than this cannot be demanded. Regard must be had to the circumstances and to the time of the arrest. If a person is arrested late at night, it scarcely seems unreasonable if he is held overnight and charged before a court the following morning. The important thing is that his detention after arrest must be only for the purpose of bringing him before a District Justice or a Peace Commissioner with reasonable expedition so that a Court can decide whether he is to remain in custody or to be released on bail. In this case the Appellant was arrested at 9.30pm at night on a Thursday. Courts were sitting normally on the following day.
O'Higgins J. later went on to conclude "…I can see no basis on the evidence and in the circumstances of the arrest for regarding the overnight detention of the Appellant as being unreasonable." (P.103). Here O'Higgins, C.J. was referring to the period from the arrest of the person concerned at 9.30pm and when he could have been brought before the District Court on the following morning. He held that the further detention of the arrested person beyond that period was unlawful on the grounds of unreasonable delay.
16. In Dunne –v- Clinton the delay was the best part of two days during which the Dunne brothers were held in a garda station without being brought before a Peace Commissioner or a court. In The People –v- Walsh the Appellant in that case was arrested at 9.30pm on Thursday 23rd January, 1975 and not brought before the District Court until Saturday 25th January. As can be seen neither of them involved a delay as short as twenty minutes.
17. Although the Defendant in the present proceedings was not arrested on a criminal charge for the purposes of being brought before a court he was arrested and deprived of his liberty for a purpose authorised by statute namely the taking of specimens of his breath for analysis in connection with a possible offence of driving a vehicle while he had an excessive amount of alcohol in his blood. In my view the principles set out in Dunne –v- Clinton and applied in The People –v- Walsh govern the duty of the arresting gardaí in this case who were under duty to take appropriate steps to make the statutory requirement of the Defendant to provide specimens of his breath "with reasonable expedition", within a "reasonable" time or without "unreasonable delay", adopting the language used by Hanna, J. in Dunne –v- Clinton. Whether there was unreasonable delay would fall to be considered having regard to all the circumstances of the case. Central to this must be the actual duration of the delay.
18. In criminal proceedings the onus is on the prosecution to establish beyond reasonable doubt that a Defendant, while held in custody, has at all times been so held in accordance with law. Not every delay is unreasonable and if it is not unreasonable it does not require to be objectively justified. Once it has been established by the prosecution that a Defendant has been lawfully arrested and detained the question as to whether that lawful detention has been rendered unlawful by unreasonable delay in dealing with the Defendant is in the first instance a matter for the trial Judge to determine having regard to the circumstances of the case. Generally speaking I would be very much disinclined to consider that a delay of twenty minutes simpliciter in dealing with an arrested person is the kind of delay which could be treated as rendering an otherwise lawful custody, unlawful, at least in the absence of some other special circumstances.
19. However, for the reasons which I set-out hereunder I have come to the view that what was involved here was something which goes beyond delay as such in dealing with the Defendant after he was brought to the garda station and the issue goes beyond simply whether any delay was reasonable or unreasonable.
The twenty minute detention period or 'delay' in this case
20. The learned Circuit Court judge found that on arrival at the Garda Station, and before any steps were taken to actually take a breath sample, the accused was detained for a period of time amounting to twenty minutes.
21. One finds in paragraph 4(iv) and question (i) of the Case Stated that two reasons were given as an explanation for the detention period. These were:-
(a) "…the accused was put into a waiting room for the purpose of being observed by Garda Coogan to ensure that the accused did not consume any food." 4(iv).
(b) "…The evidence given was that the gardai waited some twenty seven minutes (twenty minutes being the minimum period of observation stipulated by the Garda Síochána Guidelines) following the arrival of the accused …" (Q.(i)).
22. It follows from the foregoing facts that there are Garda Síochána Guidelines which stipulate that persons arrested pursuant to section 13(1)(a) of the Road Traffic Act, 1994 must as a matter of practice be kept in detention for a minimum period of twenty minutes for the purpose of ensuring that no food is consumed by him or her. (At one point in the Case Stated there is a reference to the purpose of the detention to ensure that nothing was taken orally, but nothing turns on this).
23. There was no finding of the learned Circuit Court judge that this period of observation was extraneous to the purposes for which the person had been arrested, namely, the taking of appropriate breath specimens pursuant to the section. In any event it seems to me the inescapable conclusion on the facts before us is that the stipulated minimum period of detention and observation was associated with the purpose of the arrest and the intention of the garda to require the accused to provide specimens of his breath.
24. In my view, the facts found by the learned Circuit Court judge demonstrate that what is involved here is the introduction of a discrete and defined minimum period of detention, for a forensic purpose, to be observed as a matter of practice in every case in which a person is arrested under section 13(1)(a) of the 1994 Act with a view to requiring him or her to provide specimens of breath. This was not so much delay as the observance of a pre-established practice according to which there is inserted a discrete period of detention between the arrival of the arrested person at the garda station and the taking of the samples. It is a prescribed and conscious prolongation of an arrested persons period of detention in all such cases. In my view these factors which I have mentioned differentiate this case clearly from cases in which for one reason or another an issue arises as to whether there has been unreasonable delay in dealing with an arrested person.
25. In my view the onus is on the prosecution to justify in law recourse to a procedure involving such a prescribed minimum period of detention and observation for a forensic purpose. It must, in my view, be justified by objective reasons.
26. If it had been objectively established, to the satisfaction of the learned Circuit Court judge, that, for example, the procedure of observation for a stipulated period was reasonably necessary for the purpose of taking proper or reliable samples of breath (the purpose of the detention) then in my view that procedure would not have rendered the accused's detention unlawful. The onus on the prosecution is, of course, to establish lawful detention beyond reasonable doubt.
27. However, that was not the case. All that was established before the learned Circuit Court judge was that Garda Síochána guidelines which apply to a person arrested in the circumstances of the accused required his observation for the purposes and period outlined above. There was no evidence before the Circuit Court which would permit the Circuit Court judge to conclude that the procedure involved was reasonably necessary for the purpose of achieving the objective of the arrest namely the taking of samples of breath.
28. In my view, if the procedure according to which an arrested person must be observed for twenty minutes is capable of being justified it must be justified by a competent witness who can give appropriate evidence. I do not wish to speculate unduly as to what that evidence might or might not be in this case but it may involve establishing that, for example such a procedure is necessary in order to comply with manufacturers' instructions concerning the use of an apparatus or accords with a generally recognised and established practice. If I can take another example entirely, if a testing apparatus is stored in a fridge and requires to be brought back to room temperature before use I do not think it is necessary to go into the scientific effects of temperature on the apparatus but it would be sufficient to establish that a standard and generally recognised practice, or manufacturers' instructions, require the apparatus to be used at room temperature in order to be effective. Indeed the need to follow procedural steps in such a process may as a result of a series of cases, become so notorious as to become the subject of judicial knowledge.
29. Neither do I think that such procedural steps if thus objectively justified require to be authorised by statute or statutory regulations in order to be lawful provided they are shown on the evidence to be reasonably necessary in order to give effect to the purpose for which the arrest was authorised by law in the first place. Of course it is also a procedure which could be given specific authorisation by statute or statutory regulation.
30. This case falls to be decided on its own particular facts. There being no evidence before the learned Circuit Court judge as to why observance of the guidelines in question were reasonably necessary for achieving the purpose for which the accused had been arrested, the discrete and prescribed period of detention in question has not been justified in law and I would answer the first question posed by him in the negative.
31. The obligation on the defendant to submit to the test in question was imposed by statute even though it may inculpate him in the commission of an offence. Given that the specified period of detention leading up to the taking of that test was not, on the facts, justified in law, I am of the view that the second question should be answered in the affirmative.
252/02
Murray J
McGuinness J.
Hardiman J.
Geoghegan J.
Fennelly J.
Between:
Prosecutor/Respondent
Defendant/Appellant
JUDGMENT of Mr. Justice Hardiman delivered the 19th day of February, 2003.
32. This is a case stated by His Honour Judge Bryan McMahon of the Circuit Court. It appears that in the above entitled criminal prosecution it was established that the defendant had been arrested pursuant to Section 49(8) of the Road Traffic Acts 1961-1994. This occurred at 11.25pm on the 9th June, 2000. The defendant was then conveyed to Dunlaoghaire Garda Station, arriving at 11.40pm. The member in charge at the Station recorded the accused's arrival there and other details. At 11.44pm a Garda Darren Coogan introduced himself to the accused and brought him to an interview room. There he simply remained with the accused until 12.04am on the 10th June. In evidence, Garda Coogan stated that during the twenty minute period just mentioned he ensured that the accused took nothing orally. At 12.04am on the 10th June he explained to him the procedure in relation to the taking of a breath specimen. At 12.07am he made a statutory requirement, pursuant to Section 13(1)(a) of the Road Traffic Act, 1994, that the defendant provide two specimens of his breath. He pointed out the implications of a failure to comply with the requirement or of refusal to comply with it. In cross-examination he agreed that the defendant was detained for a period of time, described as "over twenty minutes or so" before any step was taken towards obtaining a breath sample or making a requirement that such be provided. He was asked in cross-examination to justify the detention of the defendant subsequent to his arrival in the Garda Station and prior to being required to produce a breath specimen. In answer, he pointed to the fact that the accused had been arrested under Section 49(8) of the Road Traffic Acts, 1961- 1994 as the necessary justification. He was then asked to point to any particular statutory provision, regulation or statutory instrument which justified the period of detention between 11.44pm and 12.04am during which no step was taken towards making the statutory requirement. In reply he stated that "guidelines" given to An Garda Síochána indicated that a garda in such circumstances should observe an arrested person for a period of twenty minutes prior to taking a sample or requiring that a sample be given.
33. The defendant, Garda Coogan said, refused to comply with his direction to give a breath specimen. This occurred at 12.08am.
34. The learned Circuit Court Judge found as follows:-
"At the time of the accused's arrival at the Garda Station on the night in question he was not called upon to provide a breath sample. Instead, the accused was put into a waiting room for the purpose of being observed by Garda Coogan to ensure that the accused did not consume any food. Apart from the desire to carry out this period of observation over the accused, the Gardaí were not prevented by any particular circumstances from making a requirement of the accused pursuant to Section 13(1)(a) of the Road Traffic Act, 1994 that he provide a specimen of his breath. The Gardaí did not make the Section 13(1)(a) requirement until some twenty-seven minutes following the arrival of the accused at the Station".
35. Based on the above finding the learned Circuit Court Judge then formulated the following two questions for the opinion of the Supreme Court:-
"(i) In the circumstances before me, where the evidence given was that the Gardaí waited some twenty-seven minutes (twenty minutes being the minimum period of observation stipulated by the Garda Síochána guidelines) following the arrival of the accused at the Garda Station before any requirement was made pursuant to Section 13(1)(a) of the Road Traffic Act, 1994 and that nothing prevented the Gardaí from making the requirement at the time of the accused's arrival at the Station was the accused in lawful detention at the time the requirement was made at 12.07am?
(ii) If the answer to the above question is no does that render inadmissible the evidence subsequently obtained
36. Although this case seemed to be regarded by both sides as being in the nature of a test case, intended to yield an answer of general application, it seems to me to turn very much on its own facts. The defendant was an arrested person. In the ordinary course of events the sole purpose of arrest is to bring the person arrested before a court or Peace Commissioner: see Dunne v. Clinton [1930] IR 366. However, certain statutes permit other steps to be taken in relation to an arrested person. Relevant here is Section 13 of the Road Traffic Act, 1994 which, in so far as relevant, provides that once a person has been arrested under Section 49(8) and is at a Garda Station, a member of the Garda Síochána may:-
"Require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, two specimens of his breath and may indicate the manner in which he is to comply with the requirement".
37. In the present case it appears that this was done after a period of more than twenty minutes during which, on the evidence, there was no interaction at all between the defendant and the Guard. They simply sat in a room with the Guard observing the defendant though without telling him why he was doing so. At the end of this period the Guard demanded the specimen.
38. Where a person is arrested in the ordinary way, as Hanna J. said in Dunne v. Clinton:-
"…It is, in my opinion, clearly the law that, once a person is detained by the guards or, in other words, in custody of the guards, on suspicion of having committed a felony, it is the duty of the police officer arresting him to take him with reasonable expedition before a Peace Commissioner. He can be retained in custody only during such a time as is reasonable for that purpose. Any question of the time necessary to investigate the offence, or to obtain evidence upon which to found a charge, is quite irrelevant. It is for the Peace Commissioner and not the guard to determine whether the suspected person is to remain in custody or to be released on bail".
39. In that case, the submission of the authorities that a member of the Garda Síochána could detain a person for a reasonable time during which he might make enquiries was rejected. Hanna J. stated:-
"It was further contended on the part of the defendant that, as a police officer, he was entitled to detain the plaintiffs' for a reasonable time during which he might have the opportunity of making enquiries, and investigating their connection with the crime, and that such detention did not amount to arrest or imprisonment and was lawful".
40. This contention was stoutly rejected by the Court in passages that have been quoted with approval throughout the seventy-three years since its delivery.
41. As already noted, the provisions of Section 13 of the 1994 Act is by way of exception to the general rule about the treatment of an arrested person. This Act and its predecessors have given rise to a great deal of litigation, as have other statutes permitting an arrested person to be detained for some purpose without being brought before a court, such as the Offences against the State Act, 1939. In all these cases it has been held that provisions permitting detention must be strictly construed. For example, in DPP v. McGarrigle (Supreme Court, unreported, 22nd June, 1977) it was held that compliance with the Statute must be strictly proved and that all its requirements must be affirmatively proved to have been complied with and this must "not be left to be inferred".
42. If a person arrested in the ordinary way must be brought before a Court or Peace Commissioner as soon as reasonably possible, it seems to me to follow that a person arrested in circumstances which permit some other procedure to be activated in respect of him is entitled to have this procedure initiated as soon as reasonably possible. This conclusion is supported by the fact that the Criminal Justice Act 1984 (Treatment of Persons in Custody) Regulation 1987 require that a person in custody be dealt with without "unnecessary delay". Alternatively, if there is statutory authority for it, he may be detained or otherwise constrained for a period permitted by statute.
43. It is of some interest to note that the 1994 Act, in other provisions, lays down particular time limits during which a person's liberty may be restricted. Section 12 of the Act provides that where a member of the Garda Síochána forms the opinion that a person in charge of a car has consumed intoxicating liquor, but does not have with him an apparatus for indicating the presence of alcohol in the breath, he may require the person "to remain at that place in his presence or in the presence of another member of the Garda Síochána until such an apparatus becomes available to him (but he shall not require him so to remain for more than one hour)…" Similarly Section 16 of the Act permits the member in charge at a Garda Station to which a person arrested under certain Sections has been brought, if he is of the opinion that the person is under the influence of drink to such an extent to be a threat to his own safety or that of others, to detain him in custody "for such period (not exceeding six hours from the time of his arrest… as the member …… considers necessary".
44. The prosecutor, in his submissions in the present case said that "Since the power of arrest could have been invoked at any time within three hours of the time of driving, the accused cannot complain that, as a consequence of an arrest made at 11.25pm he was required to provide a sample of his breath at 12.07am on the following day… at any time up until circa c. 2.20am he was liable to be arrested under Section 49(8)… at any stage thereafter a requirement could lawfully have been made of him under Section 13(1)(a), although for the offence to be proved the sample must be taken within three hours of driving".
45. This submission seems to me to rest on a misconstruction of Section 49 of the Road Traffic Act. Section 49 in its present form is inserted by Section 10 of the 1994 Act. It creates, at subsection (2) a prohibition against driving or attempting 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 of so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of eighty milligrams of alcohol per one hundred millilitres of blood". In other words, the excess alcohol offence is committed if the concentration of alcohol in the blood or urine exceeds the permitted limit at any time within three hours of driving. This, however, is not to say that the power of arrest conferred by subsection (8) is confined to a three hour period after the defendant has been driving. This power of arrest exists not merely in respect of excess alcohol charges but also in respect of the original offence of driving while incapable of having proper control of a vehicle (Section 49(1) ). It is certainly not the law that no prosecution may be initiated unless an arrest takes place within three hours. The effect of that would be to confer an immunity on anyone who could escape arrest for three hours after driving.
46. It thus appears to me that the prosecutor's submission is based, oddly, on an overly restrictive view of the powers of a member of the Garda Síochána. He says, in effect, that the defendant could have been arrested at any time within three hours of driving and therefore cannot complain in a case like this where he was arrested immediately after driving and the whole procedure was complete within an hour or so of his driving. But the case does not turn on the period within which the defendant could have been arrested: it turns on what is required to be done after his arrest, whenever that has occurred.
47. I have no difficulty with the proposition that where the authorities are entitled to perform a particular procedure on arrest, they are entitled to a reasonable period of time in which to do it. For example, if a decision is made to procure the attendance of a doctor for the purpose of requiring the arrested person to provide him with a specimen of blood or urine, a reasonable period for the attendance of the doctor is required. But, at least upon the reasonableness of the length of time actually involved being challenged, it will in my view be necessary to demonstrate that the actual period of time was no more than was reasonable. The onus of proof on this point is and must be on the prosecution since the reasons why a particular length of time was required will normally be within its exclusive knowledge. For that purpose evidence about the distance the doctor had to travel, any other commitments he had at the time and cognate matters might be called so as to render a period of time which seemed excessive reasonable.
48. The difficulty in this case is that the Guard's direct evidence gave no reason whatever for the interval during which nothing at all occurred. On being specifically challenged the Guard simply referred to a garda guideline. This was not itself produced. Even if it had been, in the absence of any specific statutory provision or presumption or authoritative decision it would require to be demonstrated that the need to wait for twenty minutes or any other period of time was objectively reasonable.
49. This is not a case of delay simpliciter. It is a case in which a Guard having custody of the applicant deliberately decided to wait for a particular fixed period before making the statutory requirement which was the purpose of the detention. He did this, he said, on the basis of "guidelines" given to An Garda Síochána.
50. The question in this case is whether that is a sufficient justification of the time which elapsed without any step being taken other than observation. This case, accordingly, does not raise such questions as whether every interval elapsing before some statutory purpose of detention is achieved requires positive justification, or whether some intervals are so short as not to call for positive justification even when challenged. I would reserve my position on that issue until it arises in an individual case.
51. It is clear from the evidence of the Guard as set out in the case stated that he himself made no decision simply to sit in a room with the applicant, doing or saying nothing, for twenty minutes. He did this because he had been told or advised to do so in "guidelines". Whether these are internal Garda guidelines or guidelines for the manufacturers of the breathalysing device or guidelines from some medical or scientific adviser or from the DPP, does not appear. It is, however, clear that they are not contained in any statute or statutory instrument or regulation on the treatment of persons in custody.
52. There was, accordingly, insufficient evidence in this case to permit the learned Circuit Judge to draw a conclusion as to whether the twenty minute interval specifically fixed by some unknown authority was or was not reasonably necessary to the achievement of the statutory purpose mentioned in S.13 (1)(a) of the Road Traffic Act 1994.
53. This conclusion does not mean that in another case where the same offence is alleged, there might not be sufficient evidence on this point. It is impossible to speculate as to what this might be, because we have no information at all as to the actual purpose of the delay. But the fact that the evidence was insufficient in this case by no means excludes the possibility of there being sufficient evidence tendered by the prosecution in another case under the same Section. This decision is on the facts of the present case.
54. I am therefore far from holding that, in another case, there might not be evidence which would clearly demonstrate the reasonableness of a twenty minute interval between arrival at the Garda Station and the administration of the test. One might speculate that the garda guidelines which apparently require this period of delay are based on some form of instruction from, or consultation with, the makers of the device into which the breath specimen is provided. But there was no evidence of any such thing in the present case, and still less was there any evidence as to why, precisely, the interval was required, from a scientific point of view. In the context of a statute which authorises the deprivation of the suspect's liberty, and the compulsory provision of evidence by him, it is not possible to presume that the delay was occasioned by some lawful and reasonable cause. A person arrested for a particular purpose is entitled to have that purpose accomplished as soon as reasonably possible, and then to have his liberty restored. In the words of Finlay C.J. in McGarrigle's case "Such a basic requirement in a serious matter must, it seems to me, be affirmatively proved and not left to be inferred".
55. In the absence of such proof it seems to me that it has not been established that the defendant's detention at the time the requirement was in fact made was lawful. I would therefore answer the first question in the negative. It follows that the second question must be answered "Yes". Lawful custody is a prerequisite of a lawful requirement to provide a specimen and the onus of proof that the custody is lawful rests on the prosecution.
56. This case arose at an early stage of the operation of the evidential breath specimen procedure. It may be that, before long, the operation of that procedure will be fully expounded and judicially considered so as to allow trial courts, in an appropriate case, to take judicial notice of certain incidents of the procedure. This was not a factor in the present case.
