The Gazette 1994

GAZETTE

OCTOBER 1994

association with a local person. Thus the applicant had known about the case which he had to meet and had an oppor- tunity to make submissions to the effect that it was not a sufficient basis for a decision to transfer him. (2) The affida- vit of the assistant garda commissioner contained a full statement as to the rea- sons for the decision to transfer the ap- plicant and the decision of the Garda Review Board which affirmed it. Al- though the fact that a chemist was sub- ject to special garda supervision was not specifically identified as the basis for the concern regarding the applicant's relationship prior to the filing and serv- ice of the affidavit, this was known to the applicant and it had been open to him to argue in court that no reasonable tribunal could have reached a decision to transfer him based on the grounds referred to in the affidavit. (3) The course of procedure adopted by the ap- plicant in the light of the failure of the Garda Review Board to state its reasons before the expiration of the deadline specified by his solicitors had been ex- cessively precipitate. Even though the letter of reply sent on 31 March 1992 did not state the reasons in detail, the re- spondent had complied with whatever obligation to give reasons had been im- posed on him by law. (4) The decision to transfer the applicant was not so un- reasonable that no reasonable authority could have come to it nor was it funda- mentally at variance with reason and common sense. State (Keegan) v. Stardust Victims' Compensation Tribunal [1986] IR 642 and O'Keeffe v. An Bord Pleanála Director of Public Prosecutions (Garda Ciaran Coughlan) v. Anthony Swan: Supreme Court (Finlay CJ, O'Flaherty, Egan, Blayney and Denham JJ) 11 May 1993 Criminal Law - Case stated - Road traffic - Blood or urine specimen - Defendant opted to give sample of urine - Failure to provide specimen - Charge offailure to comply with requirement of designated registered medi- cal practitioner - Whether defendant should be acquitted - Road Traffic Act 1961 (No. 24), s. 49 - Road Traffic (Amendment) Act 1978 (No. 19), s. 13 Facts The defendant was charged with failing to comply with the requirements of a designated registered medical prac- titioner in relation to the taking of a specimen of urine contrary to s. 13(3)(b) of the Road Traffic (Amendment) Act 1978 ('the 1978 Act'), following a re- quirement under s. 13(l)(b) of the 1978 Act. After the defendant was arrested 3 [1993] 1 IR 39 applied. Reported at [1994] 1 ILRM 303

and brought to the garda station, the registered medical practitioner ('the doctor') made the requirement speci- fied in s. 13 of the 1978 Act in relation to the taking of a specimen of blood or, at the option of the defendant, the provi- sion of a specimen of urine at 5.38 a.m. The defendant opted to give a specimen of urine but failed to do so after two attempts. A Garda Coughlan told the defendant of the consequences of re- fusal or failure to provide a specimen and he told the defendant that he could change his mind and permit the doctor to take a specimen of blood. The defen- dant again opted to provide a specimen of his urine at 5.55 a.m. but failed to so provide and indicated that he was un- able to do so, a failure that Garda Coughlan could not say was a deliber- ate one. The opinion of the Supreme Court was requested as to whether on those facts and in the absence of a re- quirement made by a designated medi- cal practitioner other than in the terms referred to, the defendant should be ac- quitted. Held by the Supreme Court (Blayney and Egan JJ; Finlay CJ, O'Flaherty and Denham JJ concurring) in finding that the defendant should be acquitted: (1) The obligation under s. 13 of the 1978 Act is to permit a designated medical practitioner to take from the person a specimen of his blood. The person is given an option of providing a specimen of urine. If the option is availed of, it relieves the person from the obligation to permit a specimen of his blood to be taken from him. If the person finds that he cannot provide a specimen of urine, the obligation to permit the taking of a specimen of blood revives and in such circumstances, a refusal by him to per- mit the taking of blood is the offence with which he should be charged. (2) As the defendant was charged and con- victed of failing to comply with the re- quirement of a designated medical practitioner in relation to the taking of urine and was not charged with any other offence, he should be acquitted. Per Blayney J: Before the defendant could be convicted of the offence with which he had been charged, the prose- cution had to prove that the doctor made a requirement of him in relation to the provision of a specimen of urine and that the defendant failed to comply. The facts set out in the case stated did not establish this. As the doctor did not make any requirement under s. 13(3)(b) of the 1978 Act of the defendant in rela- tion to the provision of his specimen of urine, the defendant could not be guilty of failing to comply with any such re- quirement.

Dermot Doran v. Commissioner of An Garda Síochána: High Court (O'Hanlon J) 4 October 1993

Judicial Reviezv - Natural and constitu- tional justice - Obligation to give reasons - Decision of garda commissioner transfer- ring officer - Knowledge of officer as to circumstances viewed by superiors as neces- sitating his transfer - Demand that reasons should be given within specified time fol- lowing the decision - Reasonableness of de- cision to transfer Facts The applicant was a detective garda officer who had been stationed in a particular town for approximately 14 years. His wife was employed in a cleri- cal position in the same garda station. The marriage broke down and the ap- plicant formed a relationship with a lo- cal married woman who was the only chemist in the town. The applicant's superior officers were concerned by the operational difficulties caused by his es- tranged wife continuing to work in the same station and his association with someone who was subject to supervi- sion by the gardai under statutory pro- visions pertaining to drugs and poi- sons. He was interviewed by his super- intendent and later the chief superin- tendent in relation to both matters. It was suggested that the applicant should end his relationship with the chemist but he refused to do so. Soon after these discussions the garda com- missioner required that the applicant should be transferred to a station in an- other county. On 24 February 1992 the Garda Review Board rejected the appli- cant's appeal against this decision. Fol- lowing receipt of the board's decision the applicant's solicitor sent a letter dated Friday 27 March 1992 indicating that no reason for the proposed transfer had been given and demanding that a statement of the reasons should be sup- plied by 5 p.m. on the following Mon- day. No reply was received within this time and an application for leave to ap- ply for judicial review was made on 31 March with a view to seeking an order of certiorari quashing the decision. A letter of reply sent by the respondent on the same day referred to the reasons in general terms. Held by O'Hanlon J in refusing the re- lief sought: (1) Given the discussions which took place prior to the making of the decision, the applicant had been aware in general terms of the matters which were causing concern to his su- perior officers. Likewise, when the transfer decision was appealed to the Garda Review Board, only the break- down of the applicant's marriage was discussed and in his submissions he had addressed this issue and his alleged

Reported at [1994] 1 ILRM 314