Comments on Cases
| DOI | 10.1177/002201837503900107 |
| Published date | 01 January 1975 |
| Date | 01 January 1975 |
| Subject Matter | In the Irish Courts |
In the Irish Courts
Comments
on
Cases
COURT
OF
APPEAL
IN
NORTHERN
IRELAND
PROVISION
OF
SPECIMEN
OF BLOOD
McCabe v. Molloy
THE respondent in this case (1972,
N.I
176) was convicted of being in
charge of a motor vehicle while he wasunder the influence of drink or
drugs to such an extent as,to be incapable of having proper control over
it. His conviction rested on evidence that the alcohol content of his blood
exceeded the limit permitted by the Road Traffic Act (N.J.) 1970, by
s.123(6) of which he is deemed to be guilty of that offence on proof of
that fact. By s.131(2) of that Act, however, it is enacted that a person is
to be treated as having provided a specimen of blood "if, but only if, he
consents to the specimen being taken intravenously by a medical practi-
tioner and it is so taken." In McCabe scase, the respondent was required
by a police sergeant to provide a specimen of blood and he consented to
do so. A medical practitioner took the specimen intravenously and the
analyst's certificate showed the alcohol content to be in excess of the
statutory limit. The respondent wasconvicted, but appealed to the County
Court, where the case was re-heard. At the conclusion of the case for
the prosecution, it was submitted that there was no case to answer, in
that there was no evidence that the defendant had consented to the speci-
men ofblood beingtaken from him intravenously. His contention was that
a general consent to provide a specimen did not satisfy the requirement of
s.131 (2) of the Act, but that there must be a specific consent to its being
taken intravenously.
The
learned judge accepted this contention and
reversed the conviction, but stated a case for the opinion of the Court of
Appeal. That court held that a general consent followed by the taking of
the specimen intravenously satisfied the requirements of the sub-section,
so that it is not necessary to show in addition that he expressly consented
to the specimen being taken by intravenous means. Indeed, Curran L.].
concluded that, strictly speaking, the defendant need not 'consent' to the
provision of the specimen, either generally or specifically: the Act requires
him to provide the specimen. Section 131(2) simply provides that he shall
not be treated as having done so unless he consents.
The
sub-section
provides that the requirement is not satisfied by consent alone, but the
specimen must be taken, and taken intravenously.
66
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