Gorey District Court
13 July 2023.
A DRUNK IN CHARGE case was struck out at Gorey District Court by Judge John Cheatle after concerns were raised about the technical nature of the charge before the court.
The defendant, Mr J., was represented by Patrick Horan.
Mr J had crashed his car and was found sitting in the driver’s seat intoxicated. He was arrested by Garda Egan and later provided a breath reading of 61mgs.
The legal limit is 22mgs.
At the outset, before evidence was formally heard, both the prosecution and defence agreed that Mr Horan would outline to the court his preliminary argument that the prosecution case was fundamentally flawed.
This approach would help condense issues and the court could quickly decide whether to dismiss the charges or embark on a trial.
Judge Cheatle asked Mr Horan what the nature of the defence argument was.
Mr Horan said that his client, Mr J., had been arrested for an offence under section 5 (4) of the Road Traffic Act 2010, otherwise known as drunk in charge. (Note: This offence covers circumstances where the Gardai encounter an intoxicated motorist in charge of a vehicle but not actually driving it).
“How can you know
what is inside his head?”
Mr Horan said that his client had been prosecuted for an offence of being “in charge with the intention to attempt to drive”.
It was accepted that on 20 November 2022 Garda Egan had received a call about a car blocking a road at Ballycanew, Gorey, Co. Wexford and that when he came to the scene, he found Mr J. sitting in the driver’s seat, the keys in the ignition.
Mr Horan argued that the charge, as constituted, was very difficult to prove because it involved the State having to prove beyond a reasonable doubt that Mr J. not only attempted to do something (i.e. drive) but also that he intended to attempt to do it.
Essentially Mr J. was being prosecuted, he said, for “an intention to commit an inchoate offence”.
(Note: an inchoate offence occurs where a person takes a punishable step towards the commission of another crime. Examples include attempt, incitement and conspiracy. They are offences which “work towards” the commission of an offence. Murder requires the wrongful killing of a person, but attempted murder deals with cases where a person has tried, but failed, to kill someone).
There was a reason why so few cases of attempt were prosecuted before the courts he said. This was because proving the mental element of attempt was very hard.
Due to the complexity involved in proving offences of incitement, conspiracy and attempt, he said, prosecutions for these offences were rare, as compared to prosecutions for the offences which they related to.
Judge Cheatle asked whether it was the Defence’s argument that the charge before the court was incorrect. Mr Horan said that this was the position.
Mr Horan said that he had prepared submissions on the legal issues at play, and these were handed into court. A copy was handed to the State, represented by Inspector Syl Hipwell.
HE STATED THAT HE had prepared legal submissions on the law around drunk in charge as well as the authorities -such as they existed- on the difficult charge of “intent to attempt to drive”.
Opening the submissions Mr Horan began by setting out what section 5 of the Road Traffic Act 2010 (ie drunk in charge) actually said.
According to section 5(4):
“A person commits an offence if, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), there is present in his or her body a quantity of alcohol such that, within 3 hours after so being in charge, the concentration of alcohol in his or her breath will exceed a concentration of-
(a) 22 microgrammes of alcohol per 100 millilitres of breath, or (b) in case the person is a specified person, 9 microgrammes of alcohol per 100 millilitres of breath.”
“Successful prosecutions for offences like
conspiracy, incitement or attempt were rare”
Mr Horan said precisely because
they were “notoriously hard to prove”.
He said that section 5 (4) created two alternate offences, that of intending to drive or attempting to drive.
“The operative word” he said was “or”.
He pointed out that in many drunk in charge cases, the charge read “intent to drive/attempt to drive”. The charge in this format, alleging both an intent and attempt to drive, was arguably void he said.
It was potentially void because it was suggesting the commission of two alternate offences, ‘intending’ and ‘attempting’.
However, he did not criticise the charge that the State had brought against Mr J.
“Garda Egan was perfectly entitled to bring a charge of intent to attempt to drive” he said. “It is a perfectly valid charge. It is just very difficult to prove”.
Judge Cheatle agreed with this point. The element of the charge relating to intent concerned him.
“How can you know what is inside his head?” he asked.
He said that if the charge was alleging an attempt to drive it seemed to him that this would require the State to be able to prove that Mr J had taken some steps towards actually driving, “like trying to start the engine” he said.
Mr Horan agreed.
Reading the submissions before him Judge Cheatle put forward his synopsis of what Garda Egan had encountered when he came upon Mr J.
He suggested that Mr J had crashed his car and was sitting in the front seat.
The State agreed.
He asked whether the key was in the ignition.
The State confirmed that it was.
He asked whether the engine was on. Garda Egan stated that he could not recall whether it was or was not.
It was agreed that this was the height of the State’s case, as Mr J had not made any admissions at the scene.
MR HORAN POINTED OUT that the charge was perfectly lawful and that if other factors were at play, “for example if Mr J had stated to Garda Egan that he was about to drive away”, then this would likely satisfy the charge before the court.
Similarly, Mr Horan said, if the State had brought a prosecution of “in charge with the intent to drive, the Defence could have no complaint”.
But these circumstances did not exist.
Judge Cheatle then turned to the definitive textbook on the subject, Mr David Staunton’s Drunken Driving.
Mr Horan said that he had referred to sections of Mr Staunton’s book on this area where the issue was discussed at some length.
“While it is usually the case that a person is prosecuted for ‘[intending] to drive’, a person also commits an offence where it is proven that he or she ‘[intended] to attempt to drive’.
It is difficult to see how such an offence could be committed -involving as it does an intention to commit an inchoate offence- unless some specific and unusual factual matrix is disclosed”.
Further support was provided by Professor Dermot Walsh, whose book, Walsh on Criminal Procedure (2016) suggested that if someone were accidentally charged with an offence alleging an “intent to attempt to drive” the prosecution could try to correct this charge so that it properly read “intent to drive”.
But this correction could only take place within six months of the date of the offence, as otherwise it would effectively become statute barred.
Judge Cheatle asked Garda Egan whether Mr J had made any efforts to attempt to start his car in his presence.
Garda Egan very fairly stated that he did not.
Mr Horan reiterated what Mr Staunton had stated in his book: no “specific or factual matrix was disclosed” that would support a belief by Garda Egan that Mr J had either intended or attempted to drive.
“It is a very high bar to reach” he said. Not only had the State to prove that Mr J had attempted to drive, because of the way that the charge had been framed, they also had to prove that he intended to attempt to drive.
Mr Horan suggested that, on the evidence that existed in the case, this was a virtually impossible prosecutorial bar to surmount.
Judge Cheatle acknowledged that the High Court had recognised that the law had created offences of intending to drive or intending to attempt to drive and that this position was confirmed in a High Court case from 2017.
He asked Mr Horan if he was aware of a more recent case on this issue.
Mr Horan said that he was not.
“Successful prosecutions for inchoate offences like conspiracy, incitement or attempt were rare” Mr Horan said precisely because they were “notoriously hard to prove”.
Judge Cheatle considered the matter and asked Inspector Hipwell for his views. Inspector Hipwell very fairly agreed that the State did not have the strongest case to put before the court.
Judge Cheatle said that while the case could possibly be adjourned to facilitate legal submissions from the State, he did not believe that this made sense where the prosecution case was not strong.
Under the circumstances he determined that “the best course of action [was] to strike the case out”.