DPP (Stratford) v Fagan

• Jurisdiction: Ireland
• Judge: Finlay C.J.,O'Flaherty J.,BLAYNEY J.,Mrs. Justice Denham
• Judgment Date: 22 June 1994
• Neutral Citation: 1994 WJSC-SC 4058
• Court: Supreme Court
• Docket Number: [S.C. No. 90 of 1993]
• Date: 22 June 1994

1994 WJSC-SC 4058

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

90/93

STRATFORD v. FAGAN

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDAJOHN R. STRATFORD)

Complainant/Respondent

and

PATRICK FAGAN

Defendant/Appellant

1 22nd day of June 1994byFinlay C.J.

Finlay C.J.

2 I have read the judgments which are about to be delivered by O'Flaherty J. and Blayney J. in this case and I agree with the conclusions which are reached in those judgments and with the grounds on which those conclusions are based.

3 I would consider it necessary only to add certain observations on the issues which have arisen in this appeal and which are set out in thosejudgments.

4 It was conceded by Counsel on behalf of the Appellant, and in my view correctly conceded, that the Garda Siochana had a common law as distinct from any statutory right to stop a vehicle in any of the following circumstances, that is to say,

5 (1) when from observation he suspects that it is being used for a criminal purpose or that the driving of it constitutes a criminal offence e.g. (a) unsteady driving giving ground to a suspicion that the driver was affected by alcohol; (b) a youth driving a particular type of car which having regard to his appearance and the type of car concerned gives grounds for suspicions that he might have stolen it; or (c) that it coincided with a make or type of car reported as having been used as a getaway car after the commission of a crime.

6 (2) That a serious crime having been committed it was probable that amongst traffic on a particular route for a particular time there could be the car carrying the perpetrators of the crime in which instance it would at common law be lawful for a Garda Siochana to stop each car for the purpose of ascertaining whether it carried such people.

7 I do not see any logical difference in principle between these clearly accepted examples of a common lawright on the part of the Garda Siochana to stop a car or cars travelling on a particular route or at a particular place and the right which is claimed on behalf of the Garda Siochana in this case to stop cars travelling at a particular time and on a particular route in the belief that it is probable that one or more of them is being driven in a manner which constitutes an offence, namely, being driven by a person who has in their body an excess of alcohol.

8 To set up a road-check in the vicinity of a licensed premises at a time of night when the premises are being closed for the purpose of attempting to identify persons who may be committing the very serious offence of driving while drunk seems to me a proper exercise of the common law duties of the Garda Siochana as in their policingactivities.

9 I have carefully considered as to whether the fact that in more recent times in many instances certain powers of stopping vehicles have beenspecificallygranted by statute, examples of which are referred to in the judgment about to be delivered by Denham J. is inconsistent with the existence of the common law right which appears to me to exist to create a road-check under the circumstances on which it was done on this occasion. I am satisfied that there is not such an inconsistency and that in all the instances which are referred to there are a series of powers such as powers of arrest and search which go together as it were as a package and flow from the stopping of the vehicle.

10 Apart from that consideration the fact that the legislature may decide at any time to set out in a very particular and specific manner a power for such a body as the Garda Siochana is not in my view to be taken as a reason for concluding that the common law right of the same type did not already exist if there are other grounds for so deciding.

11 I would add my emphasis to the emphasis contained in the judgments with which I am agreeing that of course ifthis power were to be exercised by a member of the Garda Siochana in a capricious or arbitrary or improper method it would be wholly illegal and for that reason it is clearly open to a member of the public if stopped to ask the Garda Siochana concerned as to why he is stopping the vehicle and if subsequently charged with any offence to raise the question of the propriety of the stopping in that context.

12 The case stated in this case recites that the Garda stated that he was operating a road check and no question was asked of him and therefore in my view no further evidence was necessary as to the circumstances under which it had been decided that that was his duty at that time.

13 I would therefore disallow this appeal.

14 jud187

15 O'Flaherty J.delivered on the22nd day of June, 1994 .[EGAN CONE]

16 This is an appeal brought by Patrick Pagan from the findings of the High Court (Carney J.) of the 12th February, 1993 on a consultative case stated by District Judge Maura Roche of the 12th December, 1992 whereby he answered certain questions submitted to him in favour of the Director of Public Prosecutions.

17 The pertinent facts as set out in the case stated were as follows. On the 14th May, 1992 Patrick Pagan appeared before District Judge Roche to answer the complaint of the Director of Public Prosecutions (at the suit of Garda Stratford) that on the 14th November, 1991 at Cathal Brugha Street, Dublin he drove a motor vehicle in a public place while there was present in his body a quantity of alcohol in excess of the permitted limit. Garda Stratford gave evidence that on the morning of the 14th November, 1991 at about 12.30 a.m. he was on check-point duty at Cathal Brugha Street. He saw a car being driven along that street in the direction of O'Connell Street. He signalled the driver to stop, which he did. He approached the driver and spoke to him. Garda Stratford said that he got a smell of intoxicating liquor from his breath and that his speech was slurred. He formed the opinion that the driver had consumed intoxicating liquor and informed him of his opinion. He asked for the driver's name and address which he got. He asked him to step out of the car which hedid and he noticed that he was very unsteady. Garda Stratford then said that he formed the opinion that Mr. Pagan was under the influence of intoxicating liquor to such an extent as to render him incapable of proper control of a mechanically propelled vehicle in a public place. He told Mr. Pagan that he was arresting him under Section 49(6) of the Road Traffic Acts 1961/ 84 for drunken driving. He brought the defendant to Store Street Garda Station and, thereafter, the usual procedures for the taking of, as in this case, a urine sample were put in place. Nothing arises on this aspect of the case except to note that the ultimate finding was that the concentration of alcohol to urine in the sample provided exceeded the permittedlimit.

18 At the conclusion of the prosecution case, it was submitted on behalf of the defendant that Garda Stratford had no power to stop the defendant's car since he had not given any evidence that prior to stopping the vehicle he suspected that the defendant had committed any criminal offence and withoutany such suspicion, it was submitted, there was no power to stop a vehicle in a public place. It was further submitted on his behalf that, having stopped the vehicle, the garda then proceeded to speak to the driver and even if the court held that the garda had power to stop the vehicle he had no power to question the driver of the vehicle who was, thus, being detained by the garda and being prevented from continuing his journey.

19 The questions of law submitted for the determination of the High Courtwere:-

20 1. Is a garda, who has no suspicion in relation to any offence, entitled to stop the defendant?

21 2. If the answer to the above is in the affirmative, is the evidence obtained admissible at a subsequent trial?

22 Carney J. answered both questions in the affirmative. He based his judgment in the first instance on Section 109(1) of the Road Traffic Act, 1961as amended by the schedule to the Road Traffic Act, 1968 and whichprovides:-

"A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the garda siochana and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties."

23 He was of the view that this provision authorises a member of the garda siochana to stop a vehicle to ascertain whether there was a contravention of section 49 of the Road Traffic Act, 1961.

24 In the second place he found, relying on the judgment of Griffiths L.J. in Steel .v. Goacher 1983 RTR, 88 at page 102, that a member of the garda siochana has a common law power to operate random road traffic checks including checks in relation to drunken driving which involved the stopping of vehicles even though there might be no immediate suspicion that an offence had been committed.

25 In his submissions to this Court, counsel for the Director of Public Prosecutions relied on the statutory provision already quoted. Next he contended for a wide, general common law power in the gardai to entitle them to stop motor vehicles; finally, as a fall back position, he said that it should be inferred that when a garda at night, after public houses are closed, operates a check-point in a city centre area where there is much movement of people it should be accepted that what he is about, prima facie at least, is to detect drunken drivers and he should be entitled to stop and check on vehicles based on a general suspicion that breaches of the drink-driving laws are being committed by drivers in such circumstances without the necessity to form a specific suspicion about a particular driver.

26 I would accept this latter submission, without any hesitation, as being correct providing the power is exercised bona fide.

27 I would go further,...