Joe Sherlock (Cork East, Labour)
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Question 54: To ask the Minister for Justice, Equality and Law Reform if his attention has been drawn to the fact that a judge (details supplied) dismissed 13 cases of alleged drink driving on 9 November 2005 due to the fact that the State, including the gardaí, had refused to provide technical and operating data on the intoxilyser; if the issue will be addressed in order that other suspected drink driving cases are not dismissed; and if he will make a statement on the matter. [35713/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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I am informed by the Garda authorities that 13 prosecutions under section 49(4) of the Road Traffic Act 1961, as amended, were dismissed by the district judge sitting at Belmullet District Court on 9 November 2005. An application has been made, by way of case stated, to review the decisions of the district judge.

As the Deputy will appreciate, the courts are subject only to the Constitution and the law, and are independent in the exercise of their functions. These are matters entirely for the presiding judge and in the circumstances the House will understand that I am constrained from commenting on the conduct of a particular case. Without in any way commenting on the particular cases, where I have indicated a judicial review is pending, the House will be aware that it has been the practice for legislation relating to drink driving to be consistently challenged, often unsuccessfully, in the courts. The Government is committed to dealing effectively with the problem of drink driving and will continue to take whatever steps are necessary in this regard.

The Department of Transport and the Department of Justice, Equality and Law Reform have been considering for some time an amendment of the Road Traffic Acts to provide that in some cases persons who are found to be over the limit will be the subject of a non-court procedure in which a prosecution will not be taken if they pay a fixed penalty, surrender their licence for endorsement and consent to an administrative disqualification. If the Department of Transport, which is responsible for policy in this area, proceeds with the proposal, the Garda Commissioner is of the view that very considerable savings in court time and Garda time will result.

Joe Costello (Dublin Central, Labour)
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Does the Minister agree that drink-driving is a scourge of this country? Last weekend there were ten fatalities on the roads. Does he agree the operation of the intoxilyser has been a comedy of errors since it was introduced? There have been thousands, if not tens of thousands, of drink-driving charges that have had to be thrown out of the courts because there was no paper trail, something about which we know from electronic voting. In the case of drink-driving, the problem is the agencies of the State, including the gardaí, would not provide the relevant technical data so they could be examined. Arising from that the judge decided to dismiss 13 cases. The State should be obliged to make available relevant material that a judge deems appropriate in her court. It did not do that.

I am not asking about something that may be introduced some time in the future but about what we have now and why the gardaí, for whom the Minister is responsible, did not carry out their duty properly. Has the Minister examined this? How will he address it in future so we do not have a situation where people can constantly challenge cases while the gardaí do not fulfil their role?

Michael McDowell (Dublin South East, Progressive Democrats)
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The courts are independent under the Constitution and carry out their functions independently.

Joe Costello (Dublin Central, Labour)
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That is irrelevant.

Michael McDowell (Dublin South East, Progressive Democrats)
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I will not comment on a decision that is to be the subject of an appellate process. The decision on whether to provide information requested is primarily for the person having carriage of the prosecution, the Director of Public Prosecutions. He is the person in charge of a prosecution and it falls to him to decide what information is supplied or what facilities for examination should be granted to the defence in any case. I do not issue directives to the Garda Síochána as to how it should conduct cases or the examinations it should carry out in response to solicitors' requests. That is a matter for the DPP, who is independent. It is not my responsibility.

As far as I know, the intoxilyser equipment works perfectly well and if people want to test it, the extent to which they are free to do so is a matter to be determined in the context of a criminal prosecution between the solicitors acting for the accused and the Director of Public Prosecutions. I am sure the gardaí will abide by any directions they get from the Director of Public Prosecutions as to whether the machine should be examined, dismantled or made available to others. It is a matter for the DPP and for the courts, including the judge in a case and any appellate court, to decide if that is a legitimate request to make and the extent to which the State is obliged to provide facilities for the second guessing of the machine and its technical examination and testing by independent witnesses.

Joe Costello (Dublin Central, Labour)
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Is the Minister saying the reason the gardaí refused to provide the technical and operational data on the intoxilyser that were requested was that the Director of Public Prosecutions was consulted and said they should not be provided? Is he saying someone else told the gardaí not to provide the data or did they decide not to provide them themselves? Where does the buck stop? The Minister says he has no role in this but at a minimum he could find out what exactly happened and who was responsible for the decision that resulted in the judge throwing out 13 cases which, no doubt, will result in all other cases coming along being put on the back burner until the matter is dealt with by a higher court.

Once again the intoxilyser has been brought into ill repute, even though it is fine equipment, because the procedures under which it has been operated leave much to be desired. If the State is not prepared to play its part, there is not much sense in the Joint Committee on Transport meeting to decide if it is a constitutional matter to have random breath testing. We cannot get prosecutions from the intoxilyser without full co-operation from the people who operate it.

Jim O'Keeffe (Cork South West, Fine Gael)
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I appreciate the Minister does not want to interfere in individual cases but an important point arises here. Were the cases in question dismissed without prejudice? Is this the end of the matter or are they going to the High Court?

Does the Minister agree that in the main it would not be interfering with court proceedings for this House and the Minister to send a message that any reasonable requests from judges in the hearing of cases should be acceded to as far as possible?

Michael McDowell (Dublin South East, Progressive Democrats)
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This is the point that must be decided by the courts and not by me. It is not appropriate for me to express opinions on the merits of an outcome.

Jim O'Keeffe (Cork South West, Fine Gael)
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What if a request was reasonable?

Michael McDowell (Dublin South East, Progressive Democrats)
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If it is reasonable, a set of implications follows but if it is not correctly legally based, other inferences must be drawn. I am not in a position to speculate on what a court will decide on these issues and it would not help if I did so.

Joe Costello (Dublin Central, Labour)
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Why did the gardaí refuse?

Michael McDowell (Dublin South East, Progressive Democrats)
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In a process of discovery in a criminal prosecution decisions are primarily for the prosecutor because we have an adversarial legal system. The prosecutor decides if, as part of bringing the case, he will make available certain information. It is not the function of the Minister to send directives to the gardaí as to what they should do in particular cases.

Joe Costello (Dublin Central, Labour)
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So the DPP instructed the gardaí.

Michael McDowell (Dublin South East, Progressive Democrats)
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The Minister for Justice, Equality and Law Reform would be wholly unaware of the state of litigation in any particular case and would have no reason to become involved. These are matters left by the Constitution for others to decide.

Joe Costello (Dublin Central, Labour)
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Did the DPP make the decision?

Michael McDowell (Dublin South East, Progressive Democrats)
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I am not aware who made the decision.

Joe Costello (Dublin Central, Labour)
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Did the Minister not check? A question was asked in this House.

Michael McDowell (Dublin South East, Progressive Democrats)
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It is certainly not, however, a decision made in the Department of Justice, Equality and Law Reform.