S7 Director of Public Prosecutions -v- Cullen [2014] IESC 7 (18 February 2014)

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Cite as: [2014] IESC 7

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Judgment Title: Director of Public Prosecutions -v- Cullen

Neutral Citation: [2014] 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

Judgments by
Link to Judgment
Fennelly J.
Hardiman J.
Clarke J.
Clarke J.

Notes on Memo: Case Stated - Questions answered: 1. Yes., 2. Arrest unlawful


Record No. 477/2009
Hardiman J.
Fennelly J.
Clarke J.
In the Matter of Section 16 of the Courts of Justice Act 1947



(at the suit of Sergeant Sean Moyles)





JUDGMENT of Mr. Justice Fennelly delivered the 18th day of February 2014.

1. The question posed by the case stated before the court is whether a general and routine practice of placing drivers in handcuffs when arresting them on suspicion of drunk driving, regardless of the fact that the suspected driver behaves properly peacefully and lawfully, invalidates the subsequent statutory procedure for the taking of breath specimens leading to the acquittal of the driver.

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:

      “Sergeant Sean Moyles gave evidence that he was on covert mobile patrol with Sergeant Peter Woods at Littlepace Road on 21st September 2007, when, at approximately 22:30 pm he observed a motor van registration number 05 MH 523 exiting a shopping centre car park. He followed this vehicle and observed it driving in an erratic fashion. He signalled this vehicle to stop at the entrance on the old Navan Road, Clonee Village, a public place.
He spoke to the driver of the vehicle, and inquired about the manner of his driving. Whilst speaking to the driver he formed the opinion that he had consumed an intoxicant and made a requirement of the driver under the Road Traffic Act 1994, as amended, to provide a breath specimen. The driver complied with the requirement which indicated a fail reading. Thereafter at 22:30 Sergeant Moyles formed the opinion that the accused had consumed an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle in a public place and proceeded to arrest the driver pursuant to section 49(8) of the Road Traffic Act 1968 as amended for an offence under section 49(1), (2), (3) or (4) of the Road Traffic Act 1964, [sic, recte 1961] as amended. He informed the driver in ordinary language that he was arresting him for drink driving and proceeded to caution the accused. He identified the driver of the vehicle as Peter Cullen.

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:

      “I decided that as a matter of fact the prosecution had failed to prove that the placing of the accused in handcuffs was neither lawful, proportional nor justified and consequently that Sergeant Moyles in placing handcuffs on the accused had acted unlawfully.”
7. The learned judge then said that the opinion of this court is sought on the following questions;
      1. On the evidence adduced was I entitled to hold that the placing of handcuffs on the accused following arrest was unjustified on the grounds Sergeant Moyles did not believe the particular accused was likely to resist arrest or was likely to attempt to escape from lawful custody unless so restrained?

      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?

Submissions of the parties
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 [1987] 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 [1994] 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 [1992] 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 [2000] 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 [2003] 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
13. Firstly, it is appropriate to identify clearly what was found by the learned judge as recorded in the Case Stated. Two points need to be addressed: firstly, whether the application of handcuffs was an integral part of the arrest or merely something which took place afterwards; secondly, whether the particular Garda officer, in his evidence, stated that he adopted a general and unvarying, in effect a universal practice, of handcuffing all suspects arrested in drink-driving cases.

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:

      “(1) The use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence.

      (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.”

18. The object of that section is, of course, to provide for the circumstances in which an offence is committed. For that purpose, however, it is clear that the lawfulness of an arrest is determined by “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:

      “The first question to be considered in an individual case is whether any force is necessary in order to effect or maintain the arrest. Clearly, if the suspect voluntarily submits himself to the custody of the arresting officer and the latter does not suspect that he will put up any show of resistance, any use of force would be unlawful. So, for example, the officer will be acting unlawfully in such circumstances if he throws the suspect to the ground, forces his arms behind his back and handcuffs him. Equally, it would appear that handcuffing as a matter of course, even without any further show of physical force, is unlawful unless the officer genuinely suspects that the suspect will attempt to escape or will otherwise become violent if not handcuffed.”
20. While there is no modern Irish authority concerning the appropriateness of the use of handcuffs, counsel for Mr Cullen has gone back to the 19th century for a citation from a statement of Vaughan Williams J in the course of his summing up to a jury in a case of a civil claim for damages for violent assault committed in the course of an arrest. The case is Leigh v Cole. The jury were directed to the following effect:
      “On the one hand, it is clear that the police ought to be fully protected in the discharge of an onerous, arduous, and difficult duty-- a duty necessary for the comfort and security of the community. On the other hand it is equally incumbent on everyone engaged in the administration of justice, to take care that the power is necessarily entrusted to the police are not made an instrument of oppression or of tyranny towards even the meanest, most depraved and basest subjects of the realm…”
21. The judge directed the jury, in particular, on the use of handcuffs. He said:
      “With respect to handcuffing, the law undoubtedly is that police officers are not only justified, but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates ; but what those reasonable measures are must depend entirely on circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrate's court is to be handcuffed seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magistrates; and you must say whether, looking at all the circumstances of the case, the defendant used unreasonable precautions in this case, or used unnecessary measures to secure the safe custody of the Plaintiff”.
22. The judge did not, in that passage, discuss the validity of the arrest. As it happens, the principal authority cited on behalf of the Director arose also out of a civil claim for damages against police officers. It is the judgment of the Court of Appeal in England in Simpson v The Chief Constable of South Yorkshire Police, (Times Law Reports 7 March 1991). The case arose out of a claim for damages for assault by persons arrested during the miners’ strike in 1984. The defendants relied in their defence on the conviction of the plaintiff for malicious wounding of a police officer. The plaintiff's claims were for damages for assault and false imprisonment by reason of unreasonable force used by the officers. They were struck out in the lower courts following the decision of the House of Lords in Hunter v The Chief Constable of West Midlands Police [1982] AC 529. The decision to strike out was reversed in part by the Court Of Appeal, which appears to have made a distinction between the assault claims and the claim in false imprisonment. Counsel for the Director relies on the following passage from the judgment of Fox L.J. in respect of the claim in the latter respect:
      “The first of those allegations is in effect an assertion of the use of undue force in effecting an arrest, making the arrest itself unlawful. No authority was cited to us which supports that proposition. Nor would it be a sensible state of the law. The circumstances of many arrests are such that errors of judgment may be made. If the arrest itself is justified in law, such errors in the mode of conducting it, though they may be the basis for other remedies, do not seem to be a good basis for invalidating the arrest itself which is necessary in the public interest. If the arrest is made with due authority, it is not a false imprisonment. Thus Blackstone, Book III, p.127 states that “unlawful or false imprisonment consists in such confinement or detention without sufficient authority”. There was authority for this arrest. For the validity of the arrest what is crucial is the authority. Blackstone himself makes no suggestion that undue force will nullify an arrest.”
23. Oddly, the report of the case does not disclose what order was made. It must be assumed from its terms that the claim in false imprisonment was struck out. The Simpson case is still cited, it is said, in the leading English texts as representing the law. Blackstone’s Criminal Practice 2011 states that “It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest is lawful” (p 1173). Archbold 2010 states that “The use of excessive force does not per se render an arrest unlawful, although it might be the basis for some other remedies” (p 2035).

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 [1987] 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 [1981] A.C. 446, “without permission to be present in the house the policeman was a trespasser.” He concluded, at page 18, that:

      “…… the entry made by the Garda Síochána in the present case was one not authorised by law and was in breach of the constitutional guarantee of the inviolability of the dwelling of every citizen contained in Article 40, of the Constitution.”

      The important point is that the learned judge concluded that “the arrest effected on foot of that unlawful and unconstitutional entry was illegal.”

29. Henchy J summarised the issue, at page 181, as being whether the Gardaí were trespassers, when they entered the dwelling. He added: “For if they were, the arrest was unlawful and in consequence the prosecution must fail.”

30. In Director of Public Prosecutions v McCreesh [1992] 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:

      “An offence under s. 13, sub-s. 3 cannot……be committed unless (a) the driving or attempted driving of the vehicle took place in a public place, and (b) the driver was validly arrested, and (c) he had been brought (in custody) to a garda station. On the facts of this case, therefore, the narrow point to be decided is whether there was a valid arrest.”
31. The Court considered the validity of the arrest in a context where, unlike in DPP v Gaffney, the arrest took place, not in the suspect’s dwelling, but in its curtilage. Hederman J concluded at page 254:
      “As the learned Circuit Court Judge has found that the defendant did not give leave or licence to the garda to enter the driveway of his premises, the garda was, on these authorities, undoubtedly a trespasser thereon and no other conclusion is open. Any doubt in this respect which might have arisen was put at rest when the defendant informed the garda that he was a trespasser and should leave the premises. Applying to the facts in this case the principle stated in the passages cited from the speeches in Morris v. Beardmore [1981] A.C. 446, which had the approval of Henchy J. in Director of Public Prosecutions v. Gaffney [1987] I.R. 173, in my opinion the arrest of the defendant was not a lawful arrest. If it had been intended by the Oireachtas to confer on a member of the Garda the power to make inroads on the property rights of citizens which are recognised and protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power in section 49.”
32. There was much discussion in these two cases about whether the Gardaí were, in fact and in law, trespassers. The cases were distinguished, on the facts, in Director of Public Prosecutions v Forbes [1994] 2 IR 542, where O’Flaherty J considered that the Gardaí had been acting on an implied authority to enter private property. They were distinguished once more, also by O’Flaherty J in DPP v Delaney (Supreme Court, unreported, 27th November 1997). But that case concerned the arrest of persons charge with offences such as breach of the peace, assault and producing an article capable of producing injury. The fact that the arrests were effected in what was claimed to be the dwelling of one or more of the accused was irrelevant. As O’Flaherty J put it:
      “ Whether an arrest is illegal or not can only be of relevance where proof of a valid arrest is an essential ingredient to ground the charge, such as under s. 49 of the Road Traffic Act, 1961……………”
33. This last dictum states the principle perhaps too succinctly. The arrest is a necessary ingredient in the sense that the authority to demand that a suspect provide samples such as blood, urine or, as in this case, breath is dependent on the procedure having been commenced by a lawful arrest.

34. The case of Director of Public Prosecutions v Finn [2003] 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:

      “The obligation on the defendant to submit to the test in question was imposed by statute even though it may inculpate him in the commission of an offence. Given that the specified period of detention leading up to the taking of that test was not, on the facts, justified in law, I am of the view that the second question should be answered in the affirmative.”
The effect of this was that the evidence of refusal to provide the sample was held to be inadmissible.

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 [2008] 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:

      “.. since in the absence of express provision it was presumed that Parliament did not intend to authorise what would otherwise be tortious conduct, a constable must be acting lawfully towards a person whom he required to provide a specimen for a breath test …......
Lord Diplock said, at page 456:
      “… in my opinion, in order to constitute a valid requirement the constable who makes it must be acting lawfully towards the person whom you requires to undertake a breath test at the moment when he makes the requirement. He is not acting lawfully he is then committing the tort of trespass on that person's property for [the section] gives him no authority to do so.”
37. Thus, at least at one time, it was considered that the validity of the breath-testing procedures carried out under the Road Traffic depended on a valid and lawful arrest. This position in English law has subsequently undergone significant change both by statute and judicial interpretation. (see, for example Fox v Chief Constable of Gwent [1986] A.C. 281.)

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.

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