Supreme Court: Drink driving statement admissible as evidence notwithstanding absence of Irish language version

A man who was caught drink driving has had his appeal to the Supreme Court dismissed.

In a unanimous judgment from the Court concerning the statutory interpretation of the Road Traffic Act 2010, Ms Justice O’Malley held that while the document relied upon to prove the breath alcohol level should have contained the Irish language version – there was no reason it should not be admissible into evidence.


Mr Mihai Avadenei was tried in the District Court for an offence contrary to s. 4(4) of the Road Traffic Act 2010 – that is, driving while the concentration of alcohol in his breath exceeded a concentration of 22mg of alcohol per 100ml of breath (within three hours after so driving).

At the hearing, Mr Avadenei submitted that the prosecution had not proved the case pursuant to s. 13 of the Road Traffic Act 2010.

The argument was that the document relied upon to prove the breath alcohol level (referred to in the Road Traffic Act 2010 as a “statement”) was not “duly completed” in that it did not comply with the form prescribed in the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2011, made under the Act.

i.e. the form prescribed by the regulations included both an Irish and English language version of the contents – in Mr Avadenei’s case the statement was in the English language only.

Two issues were raised in the appeal to the Supreme Court, namely whether:

  1. A document adduced in evidence against Mr Avadenei in a Road Traffic Act prosecution was in the form required by the legislation and the regulations made thereunder.
  2. The document should nonetheless be held admissible as evidence of the truth of its contents.
  3. Statutory interpretation

    The question for the Supreme Court a matter of statutory interpretation (notably not a question of reference to the constitutional entitlement to an Irish language version of the statement), “arising in circumstances where the content of a statement in the prescribed form is given an evidential status it would not otherwise have, and constitutes the principal evidence that the offence has been committed”.

    The District Judge agreed with Mr Avadenei’s submission and found as a fact that the statement was not “duly completed”. This was then referred to the High Court as a question of law.

    The High Court agreed with the District Judge; however, an appeal by the prosecutor was successful in the Court of Appeal.

    The Court of Appeal considered that the statement was defective, but that the defect did not materially affect the substance of the document and it was not misleading in content or effect. Applying s. 12 of the Interpretation Act 2005, the statement was not invalidated and was to be considered as complying with the prescribed form.

    Supreme Court

    Mr Avadenei said that the form did not comply with the regulations; that the degree of non-compliance was more than the mere “deviation” envisaged by the Interpretation Act 2005 and was a matter of substance; accordingly, Mr Avadenei argued that the statement could not be considered to have been “duly completed” for the purposes of ss. 13 and 20 of the Road Traffic Act 2010.

    The Director of Public Prosecutions (at the Suit of Garda Francis McMahon) said that the form did comply with the regulations, but argued, in the alternative, that any non-compliance amounted only to a “deviation” covered by the Interpretation Act 2005.

    Ms Justice O’Malley said that on a literal reading, the prescribed form must contain everything that follows the word “Schedule”.

    There was “no requirement for, and no benefit to be gained from, a purposive approach to the question”, there was “nothing absurd about the finding that, as worded, the regulations required a single bilingual form, to be provided in two identical versions. Indeed, a person unfamiliar with the practices of Irish parliamentary drafting, but who is aware that there are two official languages in the State, might well consider it appropriate. To hold otherwise requires speculation on the part of the Court as to the intentions of the draughtsman in including an Irish language translation in the instrument”.

    On the consequences of non-compliance, Ms Justice O’Malley considered numerous authorities, inter alia, DPP v Jakubowski IECCA 28, Director of Public Prosecutions v Kemmy I.R. 160, Oates v Browne 1 I.R. 481, Director of Public Prosecutions v. J.C. IESC 31, People (AG) v. O’Brien I.R. 142, the ex tempore judgment given by Kelly J. in McCarron v His Honour Judge Groarke (4th April 2000), and Director of Public Prosecutions v Lloyd Freeman IEHC 179.

    Having regard to the authorities, Justice O’Malley held that “there should be an analysis in each case as to the actual effect of the procedural error, or flaw in a documentary proof, on the fair trial rights of a defendant”.

    “If a breach of the statutory procedure is established, but it has had no consequences in that no unfairness, prejudice or detriment can be pointed to, then the normal standards applicable to criminal trials would indicate that the evidence is admissible”.

    Dismissing the appeal, Justice O’Malley held that while a straightforward literal reading of the regulations indicated that the form should have contained the Irish language version; notwithstanding that defect, the Court could apply s. 12 of the Interpretation Act 2005:

    • The “substance” of the prescribed form was the information intended to be proved in evidence by means of the statutory status accorded to the form, and all of the required information was present.
    • The content was in no way misleading, confusing or unfair.
    • No right of Mr Avadenei was violated by its admission.
    • Accordingly, Justice O’Malley stated that “whether the matter is looked at solely through the prism of the authorities on this type of prosecution or in the light of the general principles of the criminal law, I can see no reason why the form should not be admitted into evidence”.

      • by Seosamh Gráinséir for Irish Legal News
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