Constitutional question - Art 15.13

Contra Proferentem

Article 15 of the Constitution of Ireland (1) reads:

The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.

So, according to that provision, in theory a member of the Oireachtas cannot be arrested while going to, coming from or within the surroundings of either House unless suspected of treason or a breach of the peace.

For instance, the common scernario would be a TD or Senator engaging in the act of drink driving, but constitutionally he/she could not be arrested by the Gardai if stopped. However, the member of the Oireachtas could be charged and/or convicted of the offence. (2)

So, I'm interested in how the member would be convicted, considering that the Roadside Breath Test equipment is not used for evidential purposes, such an evidential sample must be taken using the intoxilizer at the District Garda Station and therefore would it not be necessary to arrest the member of the Oireachtas for this to be done assuming he was non-compliant beyond the initial test?

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1. Constitution of Ireland, Department of Taoiseach, (Dublin 2004) accessed at: http://www.taoiseach.gov.ie/attached_files/html%20files/Constitution%20of%20Ireland%20%28Eng%29Nov2004.htm

2. F.W. Ryan, Nutshell Constitutional Law, (RoundHall, Dublin 2002)

amen

This happened a few years ago. A TD was caught drunk driving and claimed immunity from arrest.

Under public pressure I think he revoked immunity and was charged.

Can't remember the name or year

seamus

The most recent one was Paddy Sheehan last year.

The Garda no doubt knew that she couldn't arrest him on the grounds but went into the grey area of simply preventing him from leaving without restraining him.

coylemj

Contra Proferentem wrote: »

For instance, the common scernario would be a TD or Senator engaging in the act of drink driving, but constitutionally he/she could not be arrested by the Gardai if stopped. However, the member of the Oireachtas could be charged and/or convicted of the offence. (2)

Let's assume for convenience it's a TD.

What you say is correct but if the arrest and the subsequent procedure in the station was an essential ingredient in the prosecution then if the TD claims immuniy from arrest, the prosecution case would collapse because the evidence of the blood or urine sample (or refusal to give one) taken in the station would be inadmissable.

This happened in 1989 when Senator Sean McCarthy was arrested for suspected drunk driving in the early hours of the morning after coming out of a nightclub in Rathmines. He was brought to Rathmines station where he refused to give a sample and was prosecuted. His solicitor wrote to the DPP claiming that his client had gone to the nightclub while returning home from a sitting of the Seanad and therefore as he was technically 'returning from' the Houses of the Oireachtas he was immune from arrest.

To his eternal shame, the DPP caved in and dropped the charges. As far as I was concerned at the time he should have left it to the judge and forced the man into going into court and making the claim of immunity from arrest in front of the press and public, if only for the additional publicity it would have drawn on him for the hypocrisy of it.

Contra Proferentem wrote: »

So, I'm interested in how the member would be convicted, considering that the Roadside Breath Test equipment is not used for evidential purposes, such an evidential sample must be taken using the intoxilizer at the District Garda Station and therefore would it not be necessary to arrest the member of the Oireachtas for this to be done assuming he was non-compliant beyond the initial test?

In the current situation the TD could refuse to give a breath sample at the side of the road at which stage he would be let go though he could probably be summonsed afterwards for not providing a roadside breath sample.

McCrack

I thought Dr McCarthy took a constitutional challenge against his charge?

In any event I wouldn't slate the man, the constitutional provision is there and he used it as was his entitlement. He was not convicted of any offence.

Contra Proferentem

coylemj wrote: »

Let's assume for convenience it's a TD.

What you say is correct but if the arrest and the subsequent procedure in the station was an essential ingredient in the prosecution then if the TD claims immuniy from arrest, the prosecution case would collapse because the evidence of the blood or urine sample (or refusal to give one) taken in the station would be inadmissable.

This happened in 1989 when Senator Sean McCarthy was arrested for suspected drunk driving in the early hours of the morning after coming out of a nightclub in Rathmines. He was brought to Rathmines station where he refused to give a sample and was prosecuted. His solicitor wrote to the DPP claiming that his client had gone to the nightclub while returning home from a sitting of the Seanad and therefore as he was technically 'returning from' the Houses of the Oireachtas he was immune from arrest.

To his eternal shame, the DPP caved in and dropped the charges. As far as I was concerned at the time he should have left it to the judge and forced the man into going into court and making the claim of immunity from arrest in front of the press and public, if only for the additional publicity it would have drawn on him for the hypocrisy of it.



In the current situation the TD could refuse to give a breath sample at the side of the road at which stage he would be let go though he could probably be summonsed afterwards for not providing a roadside breath sample.

Wow, I have to say even though I can see the arguments in favour of Article 15.13, that's just ridiculous. So all that could really occur would be a charge under s.4 of the Road Traffic Act 2006 for failing to provide a specimen of breath?

Thanks for answering my query lads, much appreciated. I remember the Paddy Sheehy affair, but to be honest, I never realised this provision was in the Constitution until I happened to stumble across it one day while bored in Constitutional Law lecture.

coylemj

McCrack wrote: »

I thought Dr McCarthy took a constitutional challenge against his charge?

Nope, there was no such challenge made in any court. When the drink driving case came up in the District Court, the DPP asked for the charges to be dropped. It was all squared off by a letter from his solicitor.

McCrack wrote: »

In any event I wouldn't slate the man, the constitutional provision is there and he used it as was his entitlement. He was not convicted of any offence.

I don't think the provision in the Constitution was put there to protect a man who left the Seanad in the early evening, went to a nightclub, got p1ssed and then attempted to drive home well after midnight, several hours after the Seanad rose.

Only because he hadn't yet been home that evening was he able to stretch credibility and claim that coming out of the night club was part of his journey home from the Seanad. If he had gone home for any reason and then went out on the sauce he would have been rightly done for drunk driving.

Victor

If the facts are as presented, I think the decision was wrong. He was coming from a night club, not the Oireachtas. The Consititution doesn't say "going from home to and returning to home from ... either House".

Contra Proferentem

I also noticed it mentions that they could be arrested for a felony, but these are now abolished. What have they been replaced with? Indictable offences?

And if so, does this carry over so that Oireachtas members can be arrested for the current equivalent of a felony?

Kieron Wood

The Senator McCarthy episode, together with a host of other incidents of parliamentary privilege claims and breaches, features in Contempt of Parliament published by Clarus Press in Dublin in 2012. See the Clarus Press website for details.

coylemj

Kieron Wood wrote: »

The Senator McCarthy episode, together with a host of other incidents of parliamentary privilege claims and breaches, features in Contempt of Parliament published by Clarus Press in Dublin in 2012. See the Clarus Press website for details.

I find it a bit ironic that you register on boards and then shamelessly resurrect a four month old thread to publicise a book with 'contempt' in the title without disclosing that it was written by you!