Breath specimen printouts must be produced in both English and Irish to comply with the law

The High Court has ruled that breath specimen printouts must be produced in both English and Irish in order to comply with the Road Traffic Act 2010 and the (Prescribed Form and Manner of Statements) Regulations 2011 (S.I. 541/2011).

The case was referred to the High Court from the District Court by Judge Conal Gibbons.

On April 21st, 2014, Mihai Avadenei was stopped on Wolfe Tone Quay in Dublin by Gardai operating a speeding check because he was doing 80 kilometers in a 50 kilometer per hour zone. Using the Drager Alcotest apparatus Mr. Avadenei was asked to provide a breath specimen for the presence of alcohol, which he failed.

At Store Street Garda Station Mr. Avadenei provided another breath specimen using the Evidenzer Irl apparatus. The Evidenzer Irl apparatus produces a document which is tendered as a certificate in court for what would otherwise be hearsay. During cross-examination Judge Gibbons heard that the only document produced by the Evidenzer Irl was in English only, despite the fact the apparatus could produce the same document in Irish.

At the conclusion of the Prosecution's case, solicitor for Mr. Avadenei submitted that there was no case to answer because the document was not a duly completed statement as there was no equivalent in Irish.

After the case was adjourned until a later date to allow for written submissions, Judge Gibbons accepted that the document, purporting to show the concentration of alcohol in the breath of Mr. Avadenei, was not a duly completed statement.

Arising from the foregoing, Judge Gibbons asked the High Court whether he was entitled to hold that the document was not a duly completed statement within the meaning of section 13 of the 2010 Act.

(i) On the facts so found, was I entitled to hold that the document purporting to show the concentration of alcohol in the breath of [Mr. Avadenei] is not a "duly completed" certificate within the meaning of s[ection] 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulations 2011? 

Mr. Justice Seamus Noonan found that there are two lines of authority with regard to defective certificates in drunk driving cases:

The first can be said to arise in cases where certificate evidence is sought to be adduced in circumstances where there has been a technical error in the completion of the relevant certificate which doe not breach a mandatory statutory provision and does not result in any misleading and thus prejudice to the accused.

The second line of authority with regard to defective certificates holds that:

[...] where the relevant statute mandates the adoption of a particular procedure, a failure to adhere to that procedure will deprive the relevant certificates of any evidential value irrespective of whether or not the accused has been in any way misled or has suffered any prejudice as a result.

In the case of Mr. Avadenei, Mr. Justice Noonan took the view that the certificate falls into the second line of authority and, therefore, has no evidential value and cannot be admitted in court.  

EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

CJEU(J): The Outright Monetary Transaction programme does not exceed the powers of the European Central Bank in relation to monetary policy or breach the prohibition on monetary financing of EU Member States

The Court of Justice of the European Union has ruled that the Outright Monetary Transaction programme does not: (i) exceed the powers of the European Central Bank in relation to monetary policy; (ii) infringe the principle of proportionality, or; (iii) breach the prohibition of monetary financing of EU Member States. 

On September 6th, 2012, the European Central Bank issued a press release announcing that it had adopted certain decisions concerning the Outright Monetary Transaction programme. The Programme permits the European System of Central Banks to purchase government bonds of Member States on the secondary market subject to certain conditions: (i) the States concerned must participate in a financial assistance programme of the European Financial Stability Facility or the European Stability Mechanism; (ii) transactions would focus on the shorter part of the yield curve; (iii) quantitative limits would not be set in advance; (iv) the European Central Bank would receive the same treatment as a private creditor, and; (v) liquidity would be fully sterilised.

The case originated in Germany, where a number of concerned parties brought a case before the Federal Constitutional Court against the Federal Government. The parties argued that the Programme: (i) is not covered by the mandate of the European Central Bank and breaches the prohibition on monetary financing of Member States, and; (ii) that those decisions breach the principle of democracy, which is enshrined in German Basic Law.

For the first time in its history, the Federal Constitutional Court requested a preliminary ruling from the Court of Justice.   

In view of the Programme's objectives and the instruments provided for achieving those objectives, the Court found the Programme falls within the monetary policy.

First, the Programme contributes to achieving the objectives of the monetary policy by seeking to preserve the singleness of that policy.

Second, the Programme is likely to preserve the singleness of the monetary policy and contribute to maintaining price stability - its primary objective.

The Court found that the ability of the ESCB to influence price developments through its monetary policy decisions largely depends on the transmission of the impulses. The impulses are sent out by the ECB across the money market to various sectors of the economy. Thus, if the monetary policy transmission mechanism is disrupted, it would likely render the decision of the ESCB ineffective in a part of the Euro area. This would undermine the effectiveness of the measures adopted by the ESCB, affecting its ability to guarantee price stability.

The Court concluded that a monetary policy cannot be treated as equivalent to an economic policy simply because the monetary policy is likely to have indirect effects on the stability of the Euro area. The fact that Programme is made conditional upon full compliance with the European Financial Stability Facility or the European Stability Mechanism does not change that conclusion.

The Programme, the Court held, does not infringe on the principle of proportionality for three reasons.

The first reason is, considering the economic conditions described by the ECB in the press release in September 2012, the ESCB could take the view that the Programme was appropriate for the purpose of maintaining price stability.

The second reason is, in view of the conditions that would apply in the event of the Programme being implemented, it does not manifestly go beyond what is necessary to achieve those objectives.

The third reason is because the ESCB considered the various interests in question in order to prevent disadvantages from arising. Those disadvantages are manifestly disproportionate to the Programme's objectives.

The Court held that the prohibition on monetary financing does not prevent the ESCB from adopting or implementing the Programme under conditions that do not result in intervention by the ESCB as having the same effect as that of a direct purchase of bonds from public authorities and bodies member states.

Moreover, the prohibition does not preclude the possibility of the ESCB purchasing bonds from creditors previously issued by that state.

However the Court warned that in purchasing government bonds on the secondary market, "sufficient safeguards" must be put in place to ensure that the Programme does not "fall foul" of the prohibition.

Three safeguards were put forward by the ECB to the Court. The first safeguard, contained in the draft decision and draft guideline, indicates that the Governing Council will be responsible for deciding on: (i) the scope; (ii) the start; (iii) the continuation, and; (iv) the suspension of the intervention envisaged by the Programme on the secondary market. The second safeguard, the ESCB intends to ensure the observation of a minimum period between the issue of security on the primary market and its purchase on the secondary market. While the third safeguard, the ESCB intends to refrain from making prior announcement about either its decision to: (i) carry out such purchases, or; (ii) the volume of purchases envisaged.

UK: The policy of indefinite retention of DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with the right to respect for private life under the European Convention on Human Rights

The Supreme Court has ruled that the indefinite retention of the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is compatible with Article 8 (right to respect for private life) of the European Convention on Human Rights.

Fergus Gaughran was arrested on the morning of October 14th, 2008, for driving with excess alcohol. Mr. Gaughran later pleaded guilty to the offence at Newry Magistrates Court. He was fined and disqualified from driving for twelve months.

On the day of the arrest, the police took Mr Gaughran's fingerprints, photographs and "non-intimate" DNA sample with his full consent.

In January 2009, Mr. Gaughran's solicitor wrote to the Police Service claiming that the retention of the DNA profile, fingerprints and photograph is unlawful. The Police Service replied in February, 2009, stating that the consequences of S and Marper -v- United Kingdom judgment was a matter for the government of the United Kingdom. However following the devolution of policing in 2010, the DNA retention policy became an issue for the Northern Ireland Minister for Justice.

Mr. Gaughran was granted leave to apply for judicial review in April 2009. The case was heard by Lord Justice Girvan in the High Court, which held that the infringement of Article 8 by the Police Service was justified.

The question before the Supreme Court was whether the policy of the Police Service to retain indefinitely the DNA profile, fingerprints and photographs of a person convicted of a recordable offence is a breach of the right to respect for private life.

The lack of reference to the DNA sample in the question is because legislation is due to come into force in Northern Ireland that means DNA samples must be destroyed within six months of being taken.

The onus in this case was on the Police Service to satisfy the Court that its policy is consistent with the law, justifiable, and satisfies the principle of proportionality.

Lord Clarke agreed with Lord Justice Girvan that S and Marper only considered the position of those suspected of a crime:

There is no indication that the Strasbourg court was considering the position of those who had been convicted at all. I agree with [Lord Justice] Girvan's conclusion at para 42 that Strasbourg was not saying that a blanket policy of retaining the data of convicted persons would be unlawful.

On the policy of the Police Service indefinitely retaining biometric data, Lord Clarke found that there was no jurisprudence to support that it was not justified.

Lord Clarke concluded that the balance struck between the competing public and private interests by authorities in Northern Ireland, and England and Wales, is proportionate and justified:

Taking account of all relevant factors I would hold that the balance struck by the Northern Irish authorities, and indeed in England and Wales, is proportionate and justified.

Moreover, Lord Clarke concluded that the benefits of retaining DNA profiles of a person who are convicted outweighs the right to respect for private life under Article 8.

Lord Kerr, however, in his dissenting opinion, concluded that the indefinite retention of DNA profiles, fingerprints and photographs of a person convicted of recordable offences in Northern Ireland is incompatible with the right to respect for private life.

Unconstitutionally obtained evidence should not be automatically deemed inadmissible at trial

The Supreme Court has ruled that evidence obtained unconstitutionally should not be automatically deemed inadmissible at trial. The judgment refines the test for the exclusion of evidence first set out in the case of O'Brien in 1965 and again in Kenny in 1990.

The case stems from Gardaí in Waterford investigating three robberies on a bookmakers premises in mid-2011.

Two separate but connected issues  arose in the Supreme Court case. The first issue relates to the proper interpretation of the passage on appeals by the Director ect., on certain criminal proceedings. Specifically, whether Judge Mary Ellen Ring had erroneously excluded evidence in circumstances where it is accepted that the Judge was bound to follow, and properly applied, the Kenny judgment to the facts:

Can it be said that  a trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?

Mr. Justice Frank Clarke found that a trial judge can be properly described as having erroneously excluded evidence even where the trial judge was bound to follow what turns out to be an erroneous judgment. On that basis, Mr. Justice Clarke was satisfied that an appeal to the Court under section 23 is permissible.

The second issue concerned the statutory requirement that excluded evidence must be "compelling" for its exclusion to be appealed. Compelling evidence is defined as meaning that:

[...] the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.

After establishing that there was sufficient material on the record of the trial to enable the Court to be satisfied that the evidence is compelling, Mr. Justice Clarke concluded that it was not necessary to reach a conclusion on a motion, submitted on behalf of the Director of Public Prosecutions, to introduce additional evidence.

The question before the Court was whether O'Brien or Kenny are correct, or, whether the test set out requires refining by identifying a point not identified in either case.

In O'Brien, the Supreme Court held that evidence should not be excluded if it can be shown that those gathering the evidence had knowledge that their actions were in breach of constitutional rights. Where as in Kenny, the Supreme Court held that evidence may be excluded if it can be shown that constitutional rights were breached, regardless of the knowledge or level of care involved, save in highly unusual and exceptional circumstances.

Mr Justice Clarke, in his judgment, felt O'Brien does not go far enough, while Kenny goes too far. Refining the test, Mr. Justice Clarke set out five principles.

One, the onus is on the prosecution to establish the admissibility of all evidence. However, Mr. Justice Clarke was keen to emphasis that the test which follows does not concern the integrity or probative value of the evidence. Rather, the test is concerned with objections to the admissibility of the evidence where it relates solely to the circumstances in which it was gathered.

Two, where a warrant is challenged the onus is on the prosecution to establish either: (a) that the evidence was not gathered in circumstances of unconstitutionality, or; (b) that, if the evidence was gathered in circumstances of unconstitutionally, it remains appropriate for the Supreme Court to admit the evidence.

Three, any facts the prosecution need to establish in order to discharge the onus must be established beyond reasonable doubt.

Four, evidence obtained in deliberate and conscious violation of constitutional rights should be excluded save in exceptional circumstances considered in existing precedent. If the evidence is obtained in violation of constitutional rights, but the prosecution shows  this was not conscious or deliberate, a presumption against the admission of the evidence arises. Moreover, where evidence is obtained in breach of constitutional rights but not deliberately or consciously, the evidence should be admitted where the prosecution can establish that the breach was inadvertent or due to later legal developments.

Five, evidence that could not have been constitutionally obtained  or gathered should be excluded, even if those involved in gathering evidence were unaware due to inadvertence of the absence of authority.

Mr. Justice Donal O'Donnell expressed agreement with the approach taken by Mr. Justice Clarke. While Mr. Justice John Murray concurred in part with Mr. Justice Adrian Hardiman, who, among others, dissented.

Mr. Justice Hardiman questioned whether the Court had jurisdiction to hear the appeal because an error on the part of Judge Ring had not been established. Indeed, the majority agreed that Judge Ring had not erred. Mr. Justice Hardiman also observed that a trial judge who follows a binding authority that is subsequently overturned by a higher court does not commit an error.

Both parties agreed that a decision on a retrial should be set aside until after the substantive issues were determined.

UK: Local authorities have a statutory duty to provide accommodation in the area in so far as reasonably practicable

The Supreme Court has ruled that local authorities have a statutory duty to provide accommodation in "so far as reasonably practicable" under section 208(1) of the Housing Act 1996.

The case was taken by Titina Nzolameso, a single mother of five children. Ms. Nzolameso has long standing health problems including HIV. The introduction of a cap on Local Housing Allowance in 2012 resulted in her family's eviction from a privately rented four bedroom house in November 2012.

Following the family's eviction, Ms. Nzolameso applied to Westminster City Council under the homelessness provision of the 1996 Act. The family were temporarily housed in a hotel in the Royal Borough of Kensington and Chelsea on a bed and breakfast basis.

On January 24th, 2013, the Council offered Ms. Nzolameso temporary accommodation in Bletchley, near Milton Keynes, due to "a severe shortage of accommodation in Westminster".

When Ms. Nzolameso rejected the offer, the Council issued a letter headed "Notice that our housing duty has come to an end" under section 193(5) of the 1996 Act. Ms. Nzolameso appealed, however the appeal to the reviewing decisions officer was rejected. This was followed by unsuccessful appeals to the London Central County Court in October 2013, and the Court of Appeal in October 2014. After being refused judicial review of the County Court ruling, the Council stopped providing temporary accommodation. Subsequently, Ms. Nzolameso, after the Children's Services Department refused to accommodate the whole family, asked the Department to provide the children with accommodation.

In a unanimous Supreme Court judgment, Lady Hale found that:

There is little to suggest that serious consideration was given to the authorities obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquires made to see whether school places would be available in Bletchley and what [Ms. Nzolameso's] particular medical conditions required.

Therefore, Lady Hale concluded, the Council still owed Ms. Nzolameso a duty to secure accommodation.

Lady Hale also set out guidelines. The first guideline provides that every local authority have "a policy for proving sufficient units of temporary accommodation" to meet the anticipated annual demand. The second guideline provides that every local authority have a policy for the allocation of those units to individual homeless households. Moreover, where a shortage is anticipated in Borough Units, the policy should outline the factors taken into account in offering units close to home, and the factors that would make it suitable to accommodate a household further away. Both policies should be kept up to date and made publicly available.

Finally, Lady Hale rejected the standard paragraph used in the letter purportedly explaining the reviewing officer's decision. However, Lady Hale did not set out any guidelines for local authorities to ensure that their decisions are evidenced and explained properly.

EW: Absconder policy inconsistent with Directions to Parole Board

The Divisional Court of the High Court has ruled the prisoner "absconder policy" is inconsistent with the Secretary of State's Directions to the Parole Board of England and Wales. 

The case challenging the policy was taken by John Gilbert. Mr. Gilbert pleaded guilty to wounding with intent to cause grievously bodily harm in April 2008. He received the maximum term of four years and six months minus the time spent on remand.

The policy was introduced by the Secretary of State in May 2014 with immediate effect. Published in August 2014, the policy was an interim amendment to the PSO 6300 Release on Temporary Licence. This came in response to three serious incidents of offences committed by prisoners on release on temporary licence in the summer of 2013, and high profile prisoner absconds in 2014.

In November 2012 the Parole Board recommended the transfer of Mr. Gilbert to open conditions. Following the recommendation Mr. Gilbert was transferred to HMP Stanford Hill prison in January 2013. His sentence plan included gradual progression to 'release on temporary licence'.

After a successful period in open conditions, including being released on temporary licence on three separate days, Mr. Gilbert failed to return to prison after missing the train on June 2nd, 2013, by 7pm. The following morning Mr. Gilbert surrendered to Eastbourne police station.

As a consequence of the policy Mr. Gilbert was ineligible for transfer to open conditions. On August 15th, 2014, Mr. Gilbert was refused a transfer to open conditions.

Rejecting the "absconder policy" as inconsistent, the Court reasoned:

It is irrational to say in two policy documents in force at the same time (a) in most cases phased release via open conditions will be necessary to test whether the prisoner can be safely released into the community but (b) if the prisoner has failed on one occasion to return from [release on temporary licence], only in exceptional circumstances will it be necessary (or "absolutely necessary") to operate a phased release via open conditions to test whether the prisoner can be safely released into the community.

The Court granted the Secretary of State permission to appeal against the judgment. However the Court rejected an application for a stay pending the outcome of an appeal.