D. P. P. -v- Mc Crea [2009] IEHC 39 (28 January 2009)

D. P. P. -v- Mc Crea [2009] IEHC 39 (28 January 2009)

Once the accused requested access to a solicitor and was refused, his detention became unlawful. Evidence of his refusal to provide a breath specimen, obtained during this period of unlawful detention, is inadmissible under the strict exclusionary rule, regardless of whether a solicitor would have changed his decision or whether the Garda acted in good faith or by mistake. The law does not require a causative link between the breach and the evidence for exclusion to apply.

Citation
[2009] IEHC 39
Parties
Prosecutor/appellant: Director of Public Prosecutions (at the suit of Garda Brian Lavelle); Respondent/accused: Paul McCrea
Jurisdiction
Ireland
Judgment Date
28 January 2009
Procedural Posture
Appeal by Way of Case Stated / High Court Judgment on Questions of Law From District Court
Outcome
Appeal dismissed; questions answered in the affirmative for the accused.
Legal Topics
Right of Access to Solicitor, Exclusionary Rule, Unlawful Detention, Road Traffic Offences, Breath Specimen Refusal
Criminal Law Constitutional Law Right of Access to Solicitor Exclusionary Rule Unlawful Detention Road Traffic Offences Breath Specimen Refusal

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Parties

Director of Public Prosecutions (at the suit of Garda Brian Lavelle)

Prosecutor/appellant

Paul McCrea

Respondent/accused

Procedural Posture

Appeal by Way of Case Stated / High Court Judgment on Questions of Law From District Court

Legal Issues

  1. 1 Whether an accused is entitled to access to a solicitor before providing a breath specimen under s.13 of the Road Traffic Act 1994 as amended
  2. 2 Whether refusal to provide access to a solicitor renders subsequent detention unlawful and evidence inadmissible
  3. 3 Whether a causative link is required between breach of right and exclusion of evidence

Ratio Decidendi

Once the accused requested access to a solicitor and was refused, his detention became unlawful. Evidence of his refusal to provide a breath specimen, obtained during this period of unlawful detention, is inadmissible under the strict exclusionary rule, regardless of whether a solicitor would have changed his decision or whether the Garda acted in good faith or by mistake. The law does not require a causative link between the breach and the evidence for exclusion to apply.

Court Disposition

Appeal dismissed; questions answered in the affirmative for the accused.

Orders

  • Accused entitled to access to a solicitor before breath test procedure under s.13 of the Road Traffic Act 1994 as amended.
  • Dismissal of prosecution upheld due to breach of constitutional right to solicitor and resulting unlawful detention.