High Court: Involuntary statement made under Road Traffic Act is admissible in evidence

About this case:

• Citation:
  [2018] IEHC 554
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Donald Binchy

Background

On 23rd March 2017, Mr Stephen Burke appeared before Bray District Court, Co. Wicklow, charged with two counts of dangerous driving which were alleged to have occurred at two locations in Wicklow on 13th January 2016.

The prosecuting garda, Garda James Reynolds, gave evidence that on that date he observed a motorcycle being driven dangerously at the two locations in respect of which summonses were issued. On 16th January 2016, Garda Reynolds called to Mr Burke’s house inquiring about who had been driving the motorcycle, confirming that he requested this information pursuant to and having referred specifically to s. 107(4) of the Road Traffic Act 1961.

Garda Reynolds confirmed that he informed Mr Burke that he would be committing an offence by not telling him who was driving the motorcycle on the date in question, however, Mr Burke said that he did not know who was driving the vehicle. Later that day, Mr Burke admitted in a phone call with Garda Reynolds that he was the driver. Thereafter, Garda Reynolds cautioned Mr Burke.

District Court

In the District Court, the solicitor for Mr Burke said that the admission constituted an involuntary statement in law because it had been provided in response to a demand made by Garda Reynolds pursuant to s. 107 of the Road Traffic Act 1961, and therefore it could not be used in evidence against him.

After an adjournment, District Judge David Kennedy ruled that: “because there had been a gap between the making of the demand under the legislation and furnishing of the information, that the information was not furnished under the legislative provision”. As such, District Judge Kennedy said that“ the statement was a voluntary one as it had not been made at the time of demand under the section”

Case stated to the High Court

Instead of determining the proceedings, District Judge Kennedy certified the following questions of law for determination by the High Court:

1. Given that the transcript reflects that the information was provided pursuant to the statutory demand, and both parties accepted this to be so, was I right to find that the information provided by Mr Burke was not provided by him following a demand made pursuant to legislation?
2. If no, does it follow that the information provided by the accused in this case was, in fact, pursuant to a demand made pursuant to s. 107 of the Road Traffic Act 1961 (as amended)?
3. Whether an answer given by an accused person pursuant to a question put to him under s.107 may be admitted in evidence against him in a prosecution for an offence under the Road Traffic Act 1961?

Questions 1 and 2

Considering Questions 1 and 2, Mr Justice Donald Binchy said that the only reasonable inference that could be drawn from the evidence was that Mr Burke made his admission pursuant to the demand made by Garda Reynolds under s. 107 of the Road Traffic Act 1961.

That being the case, it could not be regarded as a voluntary statement.

Although Questions 1 and 2 related to matters of fact, Mr Justice Binchy said that it followed from his conclusion that they could be answered in this case because the conclusion reached by District Judge Kennedy as to the admissibility of the statement was “wholly unsupported by the evidence and must be set aside”.

Consequently, Mr Justice Binchy was satisfied that Question 2 should be answered in the affirmative.

Question 3

The central issue of controversy between the parties on Question 3 was whether there were any circumstances in which a court may admit an inculpatory confession or statement where the confession or statement has been found to be involuntary.

Mr Burke submitted that since the statement was made involuntarily, it could not be used in evidence against him (relying on People (AG) v. Cummins [1972] IR 312, People (AG) v Gilbert [1973] IR 383 and Re National Irish Bank Ltd (No. 1) [1999] 3 IR 145).

Mr Justice Binchy said that the passages cited by Mr Burke from Cummins, and Re National Irish Bank appeared to be “very uncompromising on the issue”. Indeed, in Re National Irish Bank, Shanley J cited Reg v Director of Serious Fraud Office, Ex P. Smith [1993] AC 1, observing that “[s]tatutory interference with the right (i.e. the privilege against self-incrimination) is almost as old as the right itself”.

However, it was clear that the absolute position taken in Cummins had been departed from by the Supreme Court in Heaney v Ireland [1994] 3 IR 593. In Heaney, the court accepted that a legislative measure could infringe a constitutional right where it passed a test of proportionality, and although Mr Heaney was successful in his appeal to the ECtHR, the ECtHR very clearly distinguished between the very wide nature of the inquiry authorised by s. 52 of the Offences Against the State Act 1939 in Heaney, and the far more limited nature of the inquiry authorised by s. 172 of the Road Traffic Act 1988 in the United Kingdom, in O’Halloran and Francis v United Kingdom [2008] 46 EHRR 21.

Finding that s.107 met the proportionality test prescribed in Heaney, Mr Justice Binchy said that it could ‘hardly be doubted but that the purpose of s. 107 is rationally connected to a proper purpose, i.e. public safety on the roads’.

Mr Justice Binchy was also satisfied that the important public policy that the State take all reasonable measures to enhance the safety of road users was recognised in the ECtHR and indeed in other jurisdictions. It followed that the answer to Question 3 was that “a statement made by an accused person in response to a demand made by a garda pursuant to s. 107 is admissible in subsequent criminal proceedings”.

• by Seosamh Gráinséir for Irish Legal News