DPP v McCreesh

• Jurisdiction: Ireland
• Judge: HEDERMAN J.,GRIFFIN J.
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-SC 421
• Court: Supreme Court
• Docket Number: [S.C. No. 267 of 1991],267/89
• Date: 01 January 1992

1991 WJSC-SC 421

THE SUPREME COURT

Griffin J.

Hederman J.

McCarthy J.

267/89

DPP v. MCCREESH

IN THE MATTER OF:

SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947

AND IN THE MATTER OF:

A CASE STATED IN RELATION TO A PROSECUTION ENTITLEDDIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

KEVIN McCREESH

Defendant

Citations:

ROAD TRAFFIC ACTS 1961 – 1978

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC (AMDT) ACT 1978 S10

TRANSPORT ACT 1981 S25 (UK)

COURTS OF JUSTICE ACT 1947 S16

ROAD TRAFFIC (AMDT) ACT 1978 S13(3)

ROAD TRAFFIC (AMDT) ACT 1978 S13(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

CONSTITUTION ART 40.5

DPP V CORRIGAN 1987 ILRM 575

DPP V GAFFNEY 1987 IR 173

ROAD TRAFFIC ACT 1961 S49

DPP V MCMAHON 1986 IR 393

AG V O'BRIEN 1965 IR 142

ROAD TRAFFIC ACT 1961 S12(3)

ALDERSON V BOOTH 1969 2 QB 216

MORRIS V BEARDMORE 1980 2 AER 753

ROAD TRAFFIC ACT 1972 S8(2) (UK)

ROAD TRAFFIC ACT 1972 S9(3) (UK)

CRIMINAL LAW ACT 1967 S2(6) (UK)

DAVIS V LISLE 1936 2 AER 213

R V WATERFIELD 1963 3 AER 659

ENTICK V CARRINGTON 1765 19 ST 1029

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC (AMDT) ACT 1978 S(12)

ROAD TRAFFIC (AMDT) ACT 1978 PART III

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1972 S8 (UK)

ROAD TRAFFIC ACT 1972 S9 (UK)

ROAD TRAFFIC (AMDT) ACT 1978 S12(3)

Synopsis:

CRIMINAL LAW

Arrest

Validity - Place - Dwelling - Curtilage - Private property - Intrusion - Garda Siochana - Powers - Statute authorised arrest without warrant - Garda trespassing at time of arrest - Breach of common law - Road Traffic Act, 1961, s. 49 - Road Traffic (Amendment) Act, 1978, s. 13 - (267/89 - Supreme Court - 7/3/91)

|Director of Public Prosecutions v. McCreesh|

GARDA SIOCHANA

Arrest

Powers - Exercise - Premises - Private property - Entry - Arrest without warrant - Trespasser - Breach of common law - Arrest unlawful - (267/89 - Supreme Court - 7/3/91) - [1992] 2 I.R. 239

|Director of Public Prosecutions v. McCreesh|

1 JUDGMENT delivered on the 7th day of March 1991by GRIFFIN J.

2 I agree with the judgment delivered by Hederman J. I would, however, like to add a few comments. In modern times, what may be called drink related driving offences are regarded as such a social evil in our society that successive Road Traffic Acts have provided that any person who drives, or attempts to drive, a mechanically propelled vehicle, in a public place, while he is under the influence of alcohol and/ordrugs, or while he has more than the permitted level of alcohol in his blood or urine will be guilty of an offence, and if convicted of the appropriate offence, will suffer the severe panalties of imprisonment and/or fine provided for in the Road Traffic Acts 1961–1978. Such a person will, in addition, be disqualified for holding a driving licence for not less than one year in the case of a first offence, and not less than three years in the case of a second or any subsequent offence.

3 As Hederman J. has pointed out in his judgment, s. 49 (6) of the Road Traffic Act, 1961(as inserted by s. 10 of the Road Traffic Act, 1978) provides that a member of the Garda Siochana may arrest without warrant a person who in the member's opinion is committing or has committed any such offence. Under the law as at present in force that power of arrest cannot be exercised if a driver succeeds in reaching his own premises, be they his private residence or his business premises, before the Gardai catch up with him. There must have been very many instances in which this has occurred, andthe enforcement of the law has been frustrated. Although any change in the existing law is a matter exclusively for the Oireachtas, instances such as in the present case would appear clearly to warrant legislative intervention to prevent repetition thereof.

4 The case of Morris v. Beardmore, 1980 2 AER to which Hederman J. has referred in his judgment, high-lighted a similar problem which arose under the corresponding law in force in England. It is of interest to note that, shortly after that case was decided, Parliament, in the Transport Act, 1981, s. 25, amended the law by providing that in respect of driving offences relating to alcohol or drugs, a constable may arrest a person without warrant if he has reasonable cause to suspect that that person is or has been committing such an offence, and that for the purpose of arresting such a person a constable may enter, (if need be by force) any place where that person is or where the constable, with reasonable cause, suspects him to be.

5 JUDGMENT delivered on the 7th day of March 1991by HEDERMAN J.

6 This is a case stated by His Honour Judge Sean D. O'Hanrahan, Judge of the Circuit Court, pursuant to s. 16 of the Courts of Justice Act, 1947in relation to a prosecution which was heard by him by way of District Court Appeal to the Circuit Court on the 25th January, 1989. The prosecution was for an alleged offence contrary to s. 13(3) of the Road Traffic (Amendment) Act, 1978.The alleged offence was as follows:-

"That you the said defendant, Kevin McCreesh did on the 19th July, 1987, at the Garda station, Dublin Street, Balbriggan, Co. Dublin in the said district, being a person arrested under s. 49 (6) of the RoadTrafficAct, 1961 and brought to a Garda station, having been required by Garda Richard Bolger, a member of An Garda Siochana, pursuant to s. 13(1) of the Road Traffic (Amendment) Act, 1978, to permit a designated registered medical practitioner to take from you a specimen of your blood, or at your option, to provide for the said designated registered medical practitioner, a specimen of your urine, did fail to comply forthwith the said requirement, contrary to s. 13(3) of the Road Traffic (Amendment) Act, 1978".

THE FACTS

7 The evidence led by the prosecution was as follows:- Garda Bolger said he and a colleague, Garda Fitzpatrick were in a marked patrol car at about 3.20 a.m. on the 19th July, 1987 when they observed a dark coloured car parked on the side of the road near Gormanston, Co. Dublin. The Gardai had received reports of alleged break-ins in the area and it was his intention to investigate the car No. KIB 3642. The witness drove past the car which moved off. He followed this car which was travelling fast. The witness lost sight of the car at certain stages buteventually located it at Balbriggan. The squad car then followed it at a distance up Hampton Street in Balbriggan and then the car turned into Hampton Cove housing estate. The Garda car attempted to overtake the car but failed. Garda Bolger then said that the flashing lights of the Garda car were then turned on along with the hazard warning lights. The car which the Gardai were following turned into the driveway of No. 35 Hampton Cove. This was the defendant's home. The driver got out of the car and made to go towards the doorway. The Garda approached him and asked him his name. The man stated "My name is McCreesh". The witness stated he attempted to ask the driver further questions concerning what his vehicle had been doing at Gormanston earlier that evening. The defendant replied that his name was Kevin McCreesh. The Garda witness stated he got a strong smell of intoxicating liquor from Mr. McCreesh's breath, that his eyes were bloodshot and his appearance was somewhat dishevelled.He stated that the man who had given his name as Kevin McCreesh was the man who had been driving the car earlier. He also stated that as a result of his observations he formed the opinion that an offence under s. 49( 2) or (3) of the Road Traffic Act, 1961as amended, had been committed by the driver. The Garda stated that he then informed the driver that he was arresting him. At that stage the driver told the Garda witness that he was a trespasser and that he was on private property and that he should leave immediately. Garda Bolger stated that the driver became agitated and told him to leave. Garda Bolger then went up to Mr. McCreesh, put his hand on his arm and said he was arresting him and he then escorted the driver to the Garda car and brought him to Balbriggan Garda station. He gave evidence that in the Garda station he contacted a medical practitioner, Dr. Anne Rhatigan who arrived at the station at 4.02 a.m. The defendant was required pursuant to s. 13 to provide for the doctor asample of his blood or at his option a sample of his urine and was informed that if he failed to give a specimen of his blood or of his urine that he would be liable to prosecution and face a 12 month disqualification and/or a fine. He stated that at 4.05 a.m. the defendant opted for a urine test. He stated that despite several attempts Mr. McCreesh failed to provide a sample after 30 minutes, and that at 4.38 a.m. the doctor left.

8 In cross-examination Garda Bolger accepted that when he first told Mr. McCreesh that he was arresting him, Mr. McCreesh had been agitated and had informed Garda Bolger that he should leave as he was on private property and was a trespasser. He agreed that it was only after this that he went up to Mr. McCreesh, took him by the arm and told him he was arrested and that he must come with Garda Bolger to the Gardastation.

9 Dr. Rhatigan then gave evidence that she was a designated medical practitioner. She stated she was calledto the Garda station where she arrived at 4. 02 or 4.05 a.m. She was introduced to the defendant and she recalled telling him that he had his choice of blood or urine. She recalled the defendant saying he was afraid of needles and he opted for urine. She stated that she waited while the defendant attempted several times to give a urine specimen and that he failed to do so. The doctor was not cross-examined.

10 That concluded the case for the prosecution.

11 Counsel for the defendant applied for a dismissal of the case on the grounds that the dwelling of the defendant was inviolable, save if entry was permitted by law. It was submitted that there was no implied invitation to members of the...