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Supreme Court of Ireland Decisions
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Cite as:  IESC 7
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Judgment Title: Director of Public Prosecutions -v- Cullen
Neutral Citation:  IESC 7
Supreme Court Record Number: 477/09
High Court Record Number: A2008 2798
Date of Delivery: 18/02/2014
Court: Supreme Court
Composition of Court: Hardiman J., Fennelly J., Clarke J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Notes on Memo: Case Stated - Questions answered: 1. Yes., 2. Arrest unlawful
THE SUPREME COURT
Record No. 477/2009Hardiman J.
In the Matter of Section 16 of the Courts of Justice Act 1947
THE DIRECTOR OF PUBLIC PROSECUTIONS
(at the suit of Sergeant Sean Moyles)
JUDGMENT of Mr. Justice Fennelly delivered the 18th day of February 2014.
2. The respondent (hereinafter “Mr Cullen”) was charged in the District Court with the offence of driving a motor vehicle in a public place “while there was present in [his] body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in [his] breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath.” That charge was laid as being contrary to section 49 (4) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994, as amended by s. 18 of the Road Traffic Act 2006.
3. The Consultative Case Stated comes before this Court pursuant to s. 16 of the Courts of Justice Act 1947. Mr Cullen had presumably been convicted in the District Court: the District Order is not before us. The hearing of his appeal took place before the Dublin Circuit Court (His Honour Judge O’Sulllivan) on 10th February 2009. The hearing, therefore, related to the charge of an offence contrary to section 49(4) and 6(a) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994.
The Case Stated
4. The offence is alleged to have been committed in the following circumstances. On 21st September 2007 at approximately 10.30pm, the accused was seen driving a motor van at Littlepace Road, Dublin 15, by Garda Sergeant Sean Moyles, who was on mobile patrol with Sergeant Peter Woods.
5. The learned Circuit Court judge found the following facts:
The accused was conveyed to Blanchardstown Garda Station, arriving at 22:40 pm where, after an observation period of 20 minutes, he subsequently provided two specimens of his breath following a requirement by Sergeant Peter Woods pursuant to the provisions of s. 13(1)(a) of the Road Traffic Act 1994, as amended. A section 17 statement was introduced into evidence by the prosecution stating that at 23:09 the accused had provided a breath specimen indicating 71 micrograms of alcohol per 100 millilitres of breath.
On cross-examination, Sergeant Moyles stated that Peter Cullen had cooperated with the Gardaí at all times during the interaction with Mr Cullen and the Gardaí prior to and subsequent to his arrest. Sergeant Moyles further accepted that Peter Cullen had not used or threatened force in order to avoid arrest, nor had Sergeant Moyles formed the opinion that there was anything in the conduct of the accused which might lead him to suspect that the accused might resist arrest unless restrained. Counsel for the accused put it to Sergeant Moyles that he had placed the accused in handcuffs immediately following his arrest in circumstances where he himself accepted that the accused neither threatened nor engaged in any conduct consistent with the belief that he would or might possibly resist arrest. Sergeant Moyles stated that it was his policy to place any person arrested for an offence under s. 49 of the Road Traffic Act in handcuffs irrespective of the circumstances as it was his experience that such persons might become abusive and resist arrest either immediately prior to or following communicating the reason for arrest to them.
At the conclusion of the prosecution case, Counsel for the Accused, applied for a direction on the grounds that Sergeant Moyles had no reasonable grounds for believing that the accused would put up any show of resistance or would attempt to evade arrest unless restrained in handcuffs. Thus the placing of such restraint on the accused was both objectively and subjectively unjustified and constituted a conscious, deliberate and unlawful use of force such as to render the accused [sic] detention unlawful. He further submitted that the exclusionary rule obligated the trial Judge in cases of a conscious and deliberate breach of the accused constitutional rights to exclude the admissibility of evidence hereafter obtained save where the prosecution establish some extraordinary and excusing circumstance justifying the actions of the Gardai.”
6. Having noted the submissions of the respective parties the learned judge states:
2. If the answer to the above is in the affirmative was I correct in law in concluding that the placing of the handcuffs on the accused by Sergeant Moyles was a conscious and deliberate breach of the accused's constitutional rights which rendered the accused's arrest and detention unlawful and which obligated me to apply the exclusionary rule in respect of any evidence obtained thereafter?
8. Counsel for Mr Cullen submits that first question to be answered is whether the use of force in effecting the accused's arrest by the application of handcuffs to restrain him was lawful. Counsel relies strongly on the evidence that Mr Cullen had been co-operative in terms of his conduct and demeanour throughout his interaction with the Gardaí, prior to his arrest. Sergeant Moyles had accepted that there was nothing in Mr Cullen’s conduct or demeanour which would give rise to a suspicion that the accused might resist arrest, become uncooperative or pose any difficulty to the Gardaí in the performance of their duties unless restrained in handcuffs. Restraint by the use of handcuffs took place only because the particular Sergeant had adopted a personal policy of restraining every person arrested for a drink driving offence in handcuffs, because, he said, in his experience, such persons might become abusive or resist arrest when informed of the intention to arrest them.
9. It is submitted that the action of restraining by the use of handcuffs constitutes the “use of force” both at common law and for the purposes of the applicable provisions of the Non-Fatal Offences against the Person Act 1997.
10. Counsel relied on a passage from the well-known work by Professor Dermot Walsh on Criminal Procedure (2002, Thomson Round Hall, at 4.55) and on the cases of Lynch v Fitzgerald (1938) IR 382, Leigh v Cole (1853) 6 Cox CC 329, DPP v Daly (High Court, Hamilton P, unreported, March 3rd 1986), DPP v Gaffney  IR 173 and DPP v Delaney (Supreme Court, unreported, 27th November 1997). Reliance was also placed on the decision of this Court in DPP v Forbes  2 IR 542, a case concerning the lawfulness of an arrest effected in the driveway of a dwelling. That case also refers to the decision of this Court in DPP v McCreesh  2 I.R. 239.
11. Counsel also submitted that Sergeant Moyles's policy and practice in employing force and restraint by handcuffs fails to take any account of the accused's constitutional right to avoid the deprivation of his liberty, save in due course of law, his right to bodily integrity and his right to avoid being the object of unnecessary force, restraint or humiliation in the course of arrest. Counsel referred to the remarks of Hardiman J in the Court of Criminal Appeal in DPP v Davis  WJSC-CCA 2471 concerning the humiliation associated with the use of handcuffs.
12. Counsel for the Director submitted that, on the evidence, the handcuffs were placed on Mr Cullen only after his arrest. Such an alleged act of wrongdoing could not affect the validity of the initial arrest. It is disputed that Sergeant Moyles had a policy of handcuffing all arrested persons. He identified merely a particular class of offenders, namely drink drivers. Handcuffing, it was submitted, is an ancillary part of but not an ingredient of a valid arrest. Mere ancillary conditions applied during detention do not amount to a breach of the rights of an accused person. Reliance is placed on cases such as DPP v Finn  1 I.R. 372 at 378. It was submitted, in particular, on the authority of Simpson v The Chief Constable of South Yorkshire Police, 27th February 1991 (English Court of Appeal), that even the use of undue force in effecting an arrest does not make the arrest itself unlawful.
The issues considered
14. On the first point, the wording of the Case Stated might have been expressed more clearly. The Garda Sergeant is reported as having had a question put to him, namely whether he had placed handcuffs on the accused at the scene "immediately following his arrest." No explicit answer to this question is recorded. However, it is clear from the entire context that a positive answer must be inferred from the sergeant’s statement that "it was his policy to place any person arrested for an offence under s. 49 in handcuffs irrespective of the circumstances.” The explanation given namely that the officers experience was that "such persons might become abusive……. either immediately prior to or following communicating the reason for arrest to them.” (emphasis added). This answer was given to a question which included the word "immediately." Moreover, the ensuing remark strongly suggests that the handcuffs, in the view of the Sergeant, need to be applied contemporaneously with the arrest. The timescale is in support of this interpretation. The car was observed at “approximately 22:30;” Sergeant Moyles formed the opinion that the accused had consumed an intoxicant at 22:30; he arrived at Blanchardstown Garda Station at 22:40.
15. Thus, I conclude that, on the facts of this case the Court is dealing with the application of handcuffs as an integral and, in the view of Sergeant Moyles, a necessary part of the arrest process.
16. On the second point, there seems to be no room for doubt but that the Sergeant was of the opinion that the application of handcuffs was necessary “irrespective of the circumstances.” These are the words attributed to him. The Sergeant expressly accepted that Mr Cullen had been fully cooperative both before and during the arrest process and that there was nothing, in the facts of this case, to suggest that he might resist arrest. Consequently, what is involved is a general policy applied by a particular officer of An Garda Síochána, without exception, to every person arrested on suspicion of driving under the influence, even where that person is entirely peaceful, cooperative, unresisting and willing to travel voluntarily to the Garda Station. To be fair, it is not the case and was not suggested that Sergeant Moyles did not genuinely believe that his policy was justified by his own experience.
17. Before turning to the legal consequences flowing from this state of facts, it is well to recall that, as a general proposition, the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in all the circumstances. There are, of course, many circumstances in which members of An Garda Síochána are amply justified in using force in effecting arrest. The law allows a generous measure of judgement to be exercised as to whether force is or is not justified. An error of judgement by an officer in applying force which he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. This proposition is illustrated by the provisions of s. 19 of the Non-Fatal Offences against the Person Act 1997 provides as follows:
(2) “use of force” in subsection (1) is defined and extended by section 20 .
(3) For the purposes of this section the question as to whether the arrest is lawful shall be determined according to the circumstances as the person using the force believed them to be.”
19. Counsel for Mr Cullen cites the following passage from the Criminal Procedure by Professor Dermot Walsh:
24. Simpson, at least in its terms, concerns the maintainability of a claim for damages for false imprisonment based on the uses of excessive force during the arrest. It does not address the effect of the use of unnecessary force on the process set in train by the arrest, such as the statutory procedures in cases such as the present. Moreover, it relates to errors of judgement made by police officers in the course of effecting an arrest.
25. I would entirely accept that any individual member of An Garda Síochána is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. The decision must be left to the individual Garda dependant on his or her own appreciation of the requirements of the individual case. The nature of the offence, the prevailing circumstances, the personality and character of the individual to be arrested must be taken into account. The law is realistic. It is appreciated that decisions on the necessity for an arrest, the appropriate amount of force and the need for the use of handcuffs are often made under pressure of circumstances of urgency, of danger of flight, and of violence and the threat of violence. Ordinarily, courts are slow to review decisions of Garda officers made in the wide range of situations which they confront in the course of their duty.
26. It may be, therefore, that the use of handcuffs is justified, in the particular circumstances, in order to prevent the arrested person from fleeing or otherwise causing disturbance. In the present case, the decision as to whether to apply handcuffs was pre-ordained. It did not depend on any evaluation of the circumstances. It left no room for the case of the entirely peaceful and cooperative suspect.
27. There is, in fact, a substantial body of case law, much of it cited on behalf of Mr Cullen, dealing with the validity of arrest in cases concerning the enforcement of the drink-driving laws. The behaviour of the suspect in several of these cases went beyond lack of co-operation and consisted in flight from and evasion of the Gardaí. Since these cases involved summary offences, they came before this Court by way of case stated.
28. Such a case was Director of Public Prosecutions v Gaffney  IR 173, where the suspect had driven a car through a Garda checkpoint, was followed into his driveway, refused to stop and refused permission for the Gardaí to enter. In the view of Walsh J, at page 180, referring to the decision of the House of Lords in Morris v Beardmore  A.C. 446, “without permission to be present in the house the policeman was a trespasser.” He concluded, at page 18, that:
The important point is that the learned judge concluded that “the arrest effected on foot of that unlawful and unconstitutional entry was illegal.”
30. In Director of Public Prosecutions v McCreesh  2 IR 239, there was a charge of refusal to give a specimen of blood or urine contrary to s. 13(3) of the Road Traffic Act, 1978. The Gardaí had pursued the suspects in a high-speed chase ultimately to the driveway of the suspect’s home. They told him they were arresting him. He said that they were trespassing on private property and asked them to leave. He was arrested and taken to the Garda Station, where he was asked to provide a specimen of blood or urine to a doctor, but refused. Hederman J, who delivered a judgment of the majority of this Court, summarised the issues at page 250 as follows:
34. The case of Director of Public Prosecutions v Finn  272 concerned a case stated in the context of another prosecution for a driving offence, the offence of refusal to provide a sample of breath as required under s. 13(1)(a) of the Road Traffic Act 1994. The suspect had been detained and kept under observation in the Garda Station for a period of twenty minutes prior to being required to provide the sample. This Court held that, in the absence of any evidence justifying that detention, his detention ceased to be lawful. Murray J, with whom McGuinness, Geoghegan and Fennelly JJ agreed said:
35. The cases of Gaffney and McCreesh establish that an arrest may be invalid if, in the absence of lawful authority or consent of the owner, it is carried out on private property. The case of Finn is somewhat different: a detention, originally lawful became unlawful because the suspect was held in detention without justification. That case was distinguished in Director of Public Prosecutions v Fox  IESC 45. The first two cases are, to some extent, historic. Section 7 of the Road Traffic Act 2010 permits an arresting Garda to “enter without warrant (if need be by use of reasonable force) any place (including the curtilage of a dwelling but not the dwelling) where the person is or where the member, with reasonable cause, suspects him or her to be.” These cases remain relevant, nonetheless, for the principle that an unlawful arrest invalidates the subsequent procedures under which the Gardaí are empowered to require the suspect to provide a sample of his breath.
36. It is, of course, neither necessary nor appropriate, for the purposes of this judgment, to reach any final conclusion on the state of English law. It is worthy of note, nonetheless, that the decision of the House of Lords in Morris v Beardmore, cited above, was an influential in the formulation of the reasoning of this Court in the Gaffney and McCreesh cases. The headnote to Morris v Beardmore reads:
38. The present case is, of course, does not involve trespass. To that extent, it is different from Gaffney and McCreesh. However, I believe that the principle established in those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, when it is quite unnecessary to do so.
39. To paraphrase the language of Hardiman J in People (at the suit of the Director of Public Prosecutions v Davis (Court of Criminal Appeal, unreported 23rd October 2000), the“the public depiction of any person, but particularly in unconvicted prisoner, wearing the double restraints which are now commonly used in the prison service is a depiction of him in a position of humiliation and indignity.” The offence with which Mr Cullen was charged is necessarily committed in a public place. The arrest will normally take place in public.
40. In my opinion, an arrest carried out in what one hopes are the unique circumstances outlined in the case stated is unlawful. I would answer the first question in the Case Stated in the affirmative. I would answer the second question by stating that the arrest was unlawful. That is sufficient to determine the case. It is unnecessary to refer to breach of constitutional rights or the exclusionary rule.