Friday 30 September 2016

Outrage aside, judges must stick to the letter of the law

Published 23/09/2015 | 02:30

'It is outrageous that drink-drivers will avoid prosecution over what many will feel is a mere technical breach of the law. But judges are obliged to uphold the law and the State is obliged to comply with it'
'It is outrageous that drink-drivers will avoid prosecution over what many will feel is a mere technical breach of the law. But judges are obliged to uphold the law and the State is obliged to comply with it'

The travesty of the High Court ruling is the prospect of hundreds of drink-drivers escaping prosecution because the State failed to follow clear procedures laid down in its own road safety laws.

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That's unforgivable, not least because of the death and injury caused by the actions of drunk drivers.

Detection, prosecutions and convictions matter, in terms of deterrence and saving lives. And alcohol breath testing, either by the side of the road or later in garda stations, is a vital part of the State's armoury in the battle to make our roads safer. Evidenzer breath-testing kits, which operate under Section 13 (2) of the Road Traffic Act (RTA) 2010, have been key to helping gardaí maintain safety on our roads.

Used in 86 garda stations, they detect the concentration of alcohol in the breath in a very specific and accurate manner.

The results are then "proved" as evidence in court by means of a certificate. The huge benefit for the State in relying on certificate evidence is that it dispenses with the need for oral evidence in court by people such as gardaí, doctors or nurses.

The quid pro quo is that the State must comply with the statutory steps leading to the production of the certificate evidence.

In the case that has given rise to emergency legislation, the prosecution had the evidence - an Evidenzer test showed Mihai Avadenei's alcohol concentration was 54 micrograms of alcohol per 100ml - but it did not follow the necessary statutory steps by producing the certificate in English and Irish.

Under the 2010 RTA, the certificate produced from the Evidenzer test must be "in the prescribed form".

The "prescribed form" laid down in a 2011 Statutory Instrument (SI) stated in no uncertain terms that the certificate must be produced in English and in Irish.

It is not that the Evidenzer machines do not have the capacity to print in Irish - they do. And details of other samples, such as blood and urine, are routinely produced in both languages.

But the July 2014 District Court prosecution (and many others behind it) fell after the High Court was asked whether the English-only certificate was "duly completed" within the meaning of the 2010 Act and the 2011 SI. The High Court found it was not and that the certificate evidence was inadmissible.

It is outrageous that drink-drivers will avoid prosecution over what many will feel is a mere technical breach of the law. But judges are obliged to uphold the law and the State is obliged to comply with it.

The State is considering an appeal to the Supreme Court, which may take a more benign approach to such good-faith errors after its relaxation last April of the so-called exclusionary rule, which barred any evidence obtained in breach of a constitutional right. The ruling has potentially huge consequences for criminal trials. Evidenzer tests may be the first examined in the new evidence regime.

However, it is scandalous to consider that the State was fully aware of the potential scale of the problem a year ago, when the Avadenei case was heard, and did nothing about it until now.

Irish Independent

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