DPP v Peter Cullen

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,Mr. Justice Fennelly
• Judgment Date: 18 February 2014
• Neutral Citation: [2014] IESC 7
• Court: Supreme Court
• Docket Number: [S.C. No. 477 of 2009]
• Date: 18 February 2014

DPP (Sergeant Moyles) v Cullen

In the Matter of Section 16 of the Courts of Justice Act 1947

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS (at the suit of Sergeant Sean Moyles)

Appellant

-AND-

PETER CULLEN

Respondent

In the Matter of s.16 of the Courts of Justice Act, 1947

Prosecutor

Defendant

[2014] IESC 7

Record No. 477/2009

[Appeal No: 477/2009]

THE SUPREME COURT

Criminal law – Drink driving - Case stated - Prosecution - Unlawful arrest and detention - Unreasonable use of force - Unjustified use of handcuffs - Breath specimens - Appeal - Admissibility of evidence - Road Traffic Act 1961

Facts: On the 21 ^st September 2007, the respondent was driving his motor vehicle on Littlepace Road, Dublin 15, when he was stopped by Gardaí and then arrested on suspicion of drunk driving. In compliance with a general and routine practice, Garda Sergeant Sean Moyles placed the respondent in handcuffs when arresting him, despite the fact that he was behaving peacefully and lawfully at the time. The respondent was thereafter transported to the local Garda station where he provided two breath specimens that indicated that the level of alcohol on his breath was over the legal limit and that he had in fact been drink driving. He was subsequently charged with 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', pursuant to s. 49 (4) of the Road Traffic Act 1961, as amended ('the 1961 Act').

Before the District Court, the respondent argued that the action of Sergeant Moyles in restraining him in handcuffs was an unjustifiable and unlawful use of force given the fact that the Sergeant accepted that he had no reasonable grounds for believing that the respondent would put up any show of resistance or would attempt to evade arrest. The respondent further argued that this unlawful act rendered his subsequent detention unlawful and, thus, invalidated the statutory procedure that led to the taking of breath specimens from him. The respondent was, however, convicted. An appeal was launched to the Dublin Circuit Court where the arguments of the respondent were accepted and his conviction was overturned. Nevertheless, a Consultative Case Stated was ordered, pursuant to s. 16 of the Courts of Justice Act 1947, to consider the issues that had been raised by the respondent.

Held by Fennelly J. (with Hardiman J. concurring and Clarke J. dissenting) that pursuant to s. 19 of the Non-Fatal Offences against the Person Act 1997, the power of arrest may only be exercised with the use of such force as is reasonable in all the circumstances. This meant that any individual member of An Garda Síochána was fully entitled to apply handcuffs to an arrested person where he or she genuinely believed that it was necessary to do so in the particular case. However in this case, it was clear from Sergeant Moyle"s statement that he had placed handcuffs on the respondent immediately following the latter"s arrest because it was his usual practice to do this when arresting someone suspected of having committed an offence under s. 49 of the 1961 Act, regardless of the circumstances. It was also noted that Sergeant Moyles had stated that he did not believe that the respondent would put up any show of resistance or would attempt to evade arrest if not restrained by handcuffs. It was, therefore, clear that Sergeant Moyles had only applied handcuffs to the respondent because he regarded it as an integral part of the arrest process. As a result, it was held that Sergeant Moyles had applied handcuffs to the respondent without lawful justification. It was further held that pursuant to established case law, the actions of Sergeant Moyles meant the respondent's arrest and detention had to be considered to have been rendered unlawful.

In his dissenting opinion, Clarke J. held that although the placing of handcuffs on the respondent by Sergeant Moyles was unjustified and unlawful for the reasons articulated by Fennelly J., it did not affect the lawfulness of the arrest or the subsequent detention because Sergeant Moyles" actions affected the manner of the arrest rather than the entitlement to arrest. As a result, it was said that the admissibility of the respondent"s breath specimens as evidence depended on the view which the Court took on the current status and extent of the exclusionary rule. A consideration of the exclusionary rule had not been made by Fennelly J. or Hardiman J., however, as this was not deemed necessary given the finding that they had made.

TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2006 S18

TRAFFIC ACT 1961 S6(A)

WALSH CRIMINAL PROCEDURE 2002 PARA 4.55

LYNCH v FITZGERALD 1938 1 IR 382

LEIGH v COLE (1853) 6 COX CC 329

DPP v DALY UNREP HAMILTON 3.3.1986

DPP v GAFFNEY 1987 IR 173 1986 ILRM 657 1986/5/423

DPP v DELANEY & ORS 1997 3 IR 453 1998 1 ILRM 507 1998/4/896

DPP v FORBES 1994 2 IR 542 1993 ILRM 817 1993/7/1854

DPP v MCCREASH 1992 2 IR 239

DPP, PEOPLE v DAVIS 2001 IR 146 2001 2 ILRM 65 2000/7/2471

DPP v FINN 2003 1 IR 372 2003 2 ILRM 47 2003/15/3386

SIMPSON v CHIEF CONSTABLE OF SOUTH YORKSHIRE 1991 135 SJ 383

TRAFFIC ACT 1961 S49

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S19

HUNTER v CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1981 3 AER 727 1982 AC 529 1981 3 WLR 906

ORMEROD BLACKSTONE'S CRIMINAL PRACTICE 2011 1173

ORMEROD BLACKSTONE'S CRIMINAL PRACTICE 2011 2035

MORRIS v BEARDMORE 1980 2 AER 753 1981 AC 446 1980 3 WLR 283 1980 RTR 321

ROAD TRAFFIC ACT 1978 S13(3)

ROAD TRAFFIC ACT 1994 S13(1)(A)

DPP (GARDA KELLY) v FOX 2008 4 IR 811 2008/18/3805 2008 IESC 45

ROAD TRAFFIC ACT 2010 S7

R v FOX 1985 3 AER 392 1986 AC 281

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

2 Judgment of Mr. Justice Clarke delivered the 18th February, 2014.

3 Judgments delivered by Fennelly J & Clarke J

4 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.

5 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.

6 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 10 ^th 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

7 4. The offence is alleged to have been committed in the following circumstances. On 21 ^st 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.

8 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 21 ^st 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."

9 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.

10 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(l)(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...