Thursday 27 October 2016

Driver who killed two people in crash loses constitutional challenge into report over his blood-alcohol levels

Published 10/05/2016 | 16:56

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A dangerous driver's constitutional right to privacy over a report into his blood-alcohol levels was “defeated by the overriding public interest” to investigate suspected serious crime, the Court of Appeal has stated.

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Michael Harty (31), of St Mary's Terrace, Askeaton, Co Limerick, had pleaded not guilty at Limerick Circuit Criminal Court to dangerous driving causing the deaths of Maurice Hartnett (61) and his wife Margaret (59) at Ardtomin, Askeaton on the evening of July 29, 2009.

Having been found guilty by a jury, Harty was given a five-year sentence and banned from driving for 30 years by Mr Justice Carroll Moran on January 25 2013.

Harty had been granted bail pending an appeal but this was dismissed last May.

In a judgment delivered today, the Court of Appeal stated its reason which held that in the circumstances of the case, Harty's consent for the release of the toxicolody report to the gardaí was not in fact required.

Giving judgment, Mr Justice Garrett Sheehan said the collision occured at an area governed by an 80 kph speed limit and the approach was covered by signs indicating the presence of dangerous bends.

The prosecution's case was that the collision occured on Mr Hartnett's side of the road and that Harty's driving was impaired due to the consumption of alcohol.

A blood sample was taken from him by nurses at Limerick University Hospital that evening.

Mr Justice Sheehan said Harty was entitled to expect that his medical records would in general be kept private because of the hospital/patient relationship.

It should be noted, the judge said, that he was unconscious at the time the gardaí sought to obtain a blood alcohol level report from the treating doctor.

He subsequently signed a consent form but that related to only one medical report and was given without being cautioned.

His barrister, Anthony Sammon SC, submitted that even if there was a means by which the gardaí could obtain such a report, it required judicial intervention akin to a search warrant.

Mr Justice Sheehan said the “exigencies of the common good” included, undoubtedly, a public interest in the prosecution of persons suspected of having committed serious crimes and the need for gardaí to gather evidence.

It was reasonable for the garda to request the records and for the hospital to release them.

His interest in keeping the records private was not sufficient to override the public interest in the gardaí being able to secure the results of the toxicology tests where he had been driving a relevant vehicle and was suspected of being under the influence.

To the extent that the garda action may have interfered with Harty's privacy, it was a proportionate interference having regard to the greater public interest and was necessary in the circumstances of the case.

Equally, any claim to confidentiality must also fail for the same reason, Mr Justice Sheehan said.

In the circumstances of the case, his consent was not in fact required for the release of the toxicology report.

Accordingly, Mr Justice Sheehan, who sat with Mr Justice George Birmingham and Mr Justice John Edwards, dismissed the appeal.

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