THE HIGH COURT
		1996 No. 1708 S.S.
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
AND IN THE MATTER OF A CONSULTATIVE CASE STATED
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
		PROSECUTOR
AND
MARK ELLIOT
		ACCUSED

Judgment of Mr. Justice McCracken delivered on the 6th day of February 1997

	This is a Consultative Case Stated by Judge Hamill seeking the opinion of the High Court on a very net question, namely:-

	"Whether before a Garda makes a requirement of a person in a hospital that he furnish a blood or urine specimen pursuant to the provisions of Section 15 of the Road Traffic Act, 1994, such person not having first been arrested by the Garda for any offence, he (the Garda) is required to caution or inform such person that he remains at liberty and is free to go from the hospital?"

	The Accused was a driver of a motor vehicle involved in an accident in which he suffered a head injury.  At the scene of the accident, Garda Moran observed that the Accused smelled of intoxicating liquor and he accompanied the Accused in an ambulance to Cavan General Hospital where the Accused was to be treated.  The Accused admitted to being the driver of the vehicle and Garda Moran formed the view that the Accused had consumed an intoxicant.  At the hospital, he required the Accused to permit a designated doctor to take a specimen of his blood or, at his option, his urine, and the Accused gave a specimen of his blood which, on analysis, showed a concentration of alcohol above the legal limit.  Section 15(1) of the Road Traffic Act, 1994 provides as follows:-

	"When, in a public place, an event occurs in relation to a mechanically propelled vehicle, in consequence of which a person is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital, and a member of the Garda Siochana is of opinion that, at the time of the event

	(a)	the person was driving or attempting to drive, or in charge of within intent to drive or attempt to drive (but not driving or attempting to drive) the mechanically propelled vehicle, and

	(b)	the person had consumed an intoxicant,

	then such member may, in the hospital, require the person either:-

	(i)	to permit a designated doctor to take from the person a specimen of his blood, or

	(ii)	at the option of the person, to provide for the designated doctor a specimen of his urine."

	I should emphasise that there is no challenge by the Accused to the actions of Garda Moran in stating his requirement under Section 15, and I must assume that he gave the Accused all necessary information and warnings with regard to the giving of a specimen.
	What is alleged here is that, before stating his requirement under Section 15, Garda Moran ought to have informed the Accused that he was not under arrest, but was at liberty, and that he was free to go.  Mr. De Blacam, on behalf of the Accused, submitted that Garda Moran was obliged to so inform the Accused because there was at law a general privilege against self-incrimination, and that as a matter of fair procedures, the Accused ought to have been told that he was at liberty.
	I certainly accept that there is a general principle that a person shall not be obliged to incriminate themselves, but it is not an absolute principle.  Section 15 itself is a clear violation of that principle, as is Section 12 of the 1994 Act which relates to the giving of breath samples.  Indeed, Mr. De Blacam is not arguing that the Accused was entitled to refuse to incriminate himself by refusing to give a specimen when required to do so, but rather that, before being required to do so, he ought to have been told what his legal position was.
	There is no doubt that it is correct to say that, at the time the request was made by Garda Moran, the Accused was not under arrest, and was at liberty.  The moment before the arrest was made, the Accused, assuming he was physically fit to do so, could have walked out of the hospital.  The argument appears to be that, by not doing so, the Accused in effect incriminated himself because he put himself in a position where Garda Moran could require a specimen.  What actually incriminated him, of course, was not the fact he remained in the hospital but the presence of an unlawful concentration of alcohol in his blood. 
	I have been referred to a number of authorities relating to self-incrimination.  While these may be of some assistance, none of them are directly on the point.  In Heaney -v- Ireland (1994) 2 I.L.R.M. 420, it was held that the right to silence was part of the right to protection against self-incrimination, and further was protected by Article 38.1 of the Constitution.  Significantly, it was also held that this was not a right protected by Article 40 of the Constitution.  Article 38.1 provides that "no person shall be tried on any criminal charge save in due course of law", and Costello J., as he then was, recognised that it was perfectly valid to impose a restriction on the right to silence, provided that the means of doing so passed what he called a proportionality test.  As I have said, there is in fact no challenge in these proceedings to Section 15 itself and, in my view, that Section clearly passes the proportionality test.
	Sullivan -v- Robinson (1954) I.R. 161 concerned the examination by a doctor of a person accused of drunken driving, and held that the prosecution had to affirmatively establish to the satisfaction of the Court that any test, the result of which intended to incriminate him, was voluntary undergone.  That is not so in the present case, as it is expressly provided by statute that there is to be a test which the Accused was obliged to take by statute, and the refusal to take such test amounts to an offence.
	This indeed seems to me to be the kernel of the case.  Garda Moran had a statutory right, once the Accused arrived at the hospital, to require him to permit a specimen to be taken, which amounts to a right to require him to incriminate himself.  Once the Garda decides he is going to exercise his powers under Section 15, while it is correct to say that the Accused is not under arrest, it is somewhat misleading to suggest that he is free to leave the hospital.  While he may be free to leave in the moment before the Garda makes the request, once the request is made, the Accused is not in fact free to leave the hospital, and will commit an offence if he does so without giving a specimen.  Furthermore, if he did manage to get outside the doors of the hospital, and thereby evade Section 15, the guard could immediately exercise his rights under Section 14, and request the Accused to accompany him to the station, or indeed could arrest him.  If Mr. De Blacam is correct, his argument really appears to be that the Accused must be given an opportunity to avoid or evade the exercise by Garda Moran of his statutory right to require a specimen.  To my mind, this is quite illogical.  If the Oireachtas imposes an obligation on a person to perform some act which may be self-incriminating, I do not think either the constitution or the common law can dilute that obligation by requiring the person to be given an opportunity to avoid complying with the obligation.
	Finally, I should also mention the case of The Director of Public Prosecutions -v- Daly, which unfortunately appears to have been an ex tempore judgment and no copy is available.  However, I have been furnished with a copy of the Case Stated and what appears to be accepted as an account of the hearing.  In that case, the Accused was required to take a breath test following an accident, and was brought by the guard to the squad car to enable the test to be taken.  He was not arrested until after the test.  However, what was held in that case appears to have been, not that the Accused ought to have been told he was not under arrest, but that he had in fact been deprived of his liberty, and that this amounted to an unlawful arrest and, accordingly, the breath test was taken while the Accused was in unlawful custody.  The Case Stated to me states that:-

	"In evidence the Accused stated that he had felt obliged to accompany Garda Moran into the room where the specimen was provided and that at all times whilst in the hospital he felt that he was not free to leave because the Garda was present at the hospital."

	This is very different from the finding of fact by the District Justice in D.P.P. -v- Daly where he found that the Accused had been "deprived of his liberty when brought by Garda Clarke to the patrol car".  There is no such finding of fact in this case, nor is the result of the test being challenged on the grounds that the specimen was taken while the Accused was in unlawful custody.
	Accordingly, I do not think there was any requirement to caution or inform the Accused that he remained at liberty and was free to go from the hospital, and I would answer the question in the Case Stated "No".