Kennedy v Director of Public Prosecutions & Ors (Approved) [2020] IECA 360 (21 December 2020)

Kennedy v Director of Public Prosecutions & Ors (Approved) [2020] IECA 360 (21 December 2020)

Mr Kennedy cannot maintain his constitutional or Convention challenge to section 12(3) because the Circuit Court found, beyond reasonable doubt, that his hearing difficulties were not an operative factor in his failure to provide a breath specimen. Any defence of inability/incapacity would not have availed him, so his challenge is a ius tertii and must be struck out. Abuse of process does not apply as the constitutional challenge could not properly have been raised in earlier judicial review proceedings.

Citation
[2020] IECA 360
Parties
Plaintiff/appellant: Giles Kennedy; Defendant/respondent: Director of Public Prosecutions; Defendant/respondent: Ireland; Defendant/respondent: Attorney General
Jurisdiction
Ireland
Judgment Date
21 December 2020
Procedural Posture
Civil Appeal / Appeal From High Court Decision Striking Out Proceedings
Outcome
Appeal dismissed; cross-appeal dismissed; High Court order affirmed
Legal Topics
Standing, Ius Tertii, Absolute Liability Offences, Defences in Criminal Law, Abuse of Process, European Convention on Human Rights
Constitutional Law Criminal Law Human Rights Standing Ius Tertii Absolute Liability Offences Defences in Criminal Law Abuse of Process +1 more

Case Brief

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Parties

Giles Kennedy

Plaintiff/appellant

Director of Public Prosecutions

Defendant/respondent

Ireland

Defendant/respondent

Attorney General

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From High Court Decision Striking Out Proceedings

Legal Issues

  1. 1 Whether Mr Kennedy has standing to challenge section 12(3) of the Road Traffic Act 1994 as unconstitutional
  2. 2 Whether section 12(3) is inconsistent with Bunreacht na hÉireann for failing to provide a defence of inability/incapacity
  3. 3 Whether section 12(3) is incompatible with the European Convention on Human Rights

Ratio Decidendi

Mr Kennedy cannot maintain his constitutional or Convention challenge to section 12(3) because the Circuit Court found, beyond reasonable doubt, that his hearing difficulties were not an operative factor in his failure to provide a breath specimen. Any defence of inability/incapacity would not have availed him, so his challenge is a ius tertii and must be struck out. Abuse of process does not apply as the constitutional challenge could not properly have been raised in earlier judicial review proceedings.

Court Disposition

Appeal dismissed; cross-appeal dismissed; High Court order affirmed

Orders

  • Proceedings struck out for lack of standing
  • No declaration of inconsistency or incompatibility