GARDA HAD ‘SKIN IN THE GAME’

A CASE of drink driving was thrown out at Listowel District Court as one of the gardaí involved in it carried out two separate functions that should have been mutually exclusive, according to legal precedent set in a judgement in an earlier case.

Ian O’Sullivan, 1 Sunset Avenue, Riverchapel, Wexford, was arrested in the early hours of January 31 of 2017 at Inch East outside Listowel. Mr O’Sullivan contested the charge and was represented by solicitor Eimear Griffin at the court sitting on Thursday, May 17, last.

Sergeant Ian Kelly told the court he was on patrol at 2.05am when he noticed a van driving towards him in the direction of Listowel ‘very, very slowly’. He turned and drove behind it, noticing it swerving over the central line.

He stopped the car, speaking to Mr O’Sullivan; accompanied by two female passengers. A district patrol car arrived at the scene with Garda Emma Mullane as official patrol car driver and Gda Pierse Ferriter accompanying her as observer.

Gda Mullane spoke to Sgt Kelly, then to Mr O’Sullivan, from whom she got a strong smell of intoxicating liquor. A breath test she carried out of the driver proved positive for alcohol. Having formed an opinion that he was drunk to the extent of being incapable of safely driving, Gda Mullane arrested him.

However, during his arrest, Mr O’Sullivan tried to lash out at one of the female passengers in the van. Gda Mullane informed the court that she required the assistance of Sgt Kelly and Gda Ferriter to restrain the defendant and effect the arrest as a result.

The crux of the defence’s case came as it emerged Gda Ferriter took over as ‘member in charge’ when all three arrived at Listowel Garda Station with the prisoner Mr Sullivan. An ‘Evidencer’ test of Mr O’Sullivan’s breath returned a reading of 29 mcg per 100 mls of breath, the Court meanwhile heard.

Solicitor Eimear Griffin argued that Gda Ferriter’s involvement as both an arresting garda and, then, as the member in charge, was in the face of the legal precedent handed down by Justice Moriarty in his judgement on the case of DPP vs Martin Bohannon.

Judge Waters upheld Ms Griffin’s argument: “The thinking behind ‘Bohannon’ is very clear... it’s putting the member of the Garda Síochána in an impossible situation if, on the one hand, they are expected to be investigating and at the same time to be charged with protecting the rights and interests of a person who is in custody. When they come into conflict how are they supposed to be resolved... if a garda is involved in the prosecution of the offence he cannot be the member in charge. The minute he got involved means he could not be member in charge as he had skin in the game,” the Judge said.