DPP v Pires

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IECA 413
• Date: 21 December 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 413 Record No.: 2015/444 2015/456 2015/475

[2016] IECA 413

THE COURT OF APPEAL

CIVIL

Mahon J.

Sheehan J.

Mahon J.

Edwards J.

Neutral Citation Number: [2016] IECA 413

Record No.: 2015/444

2015/456

2015/475

In the Matter of Section 2 of the Summary Jurisdiction Act 1957 as extended by Section 51 of the Courts (Supplemental Provisions) Act 1961

Between/

The Director of Public Prosecutions

Prosecutor/ Respondent

- and–

Cicero Pires

- and -

James Corrigan

- and -

Paul Gannon

Accuseds / Appellants

Case stated – Validity of arrest – Error in law – Appellants seeking to appeal against the judgment of the High Court – Whether trial judge erred in law by allowing the appeal by way of case stated without identifying an error of law in the determination appealed against

Facts: Smyth J, a District judge, on 20th March 2015, applied to the High Court by way of case stated in relation to three cases which had been heard by him, pursuant to s. 2 of the Summary Jurisdiction Act 1957, on a point of law. The three cases, while unconnected as between each other, were all concerned with prosecutions for offences contrary to s. 4(4)(b) and (5) of the Road Traffic Act 2010, (drink driving). In each of the cases, the validity of the arrest of the appellants was challenged on the basis that handcuffing was unnecessary and unwarranted. Having considered submissions from the parties in the three cases, the District judge decided that the handcuffing of the three appellants was not justified as a precautionary measure (rejecting the evidence of the garda witnesses) and he proceeded to dismiss the cases on the basis of DPP v Cullen [2014] IESC 7. At the request of the prosecution the District judge stated a case to the High Court. In it, he posed the following question: “Was I correct in law to find the arrest(s) unlawful?” The High Court (Barrett J) answered the question in the negative. The appellants, Mr Pires, Mr Corrigan and Mr Gannon, appealed to the Court of Appeal against the judgment of the High Court dated 9th July 2015 and the related order of the High Court made on 16th July 2015, and perfected on 11th August 2015 on the following grounds: (i) the trial judge erred in law by allowing the appeal by way of case stated without identifying an error of law in the determination appealed against; (ii) the judge erred in law by reassessing the evidence and adjudicating upon same himself; (iii) the question as to whether a trier of fact afforded sufficient “latitude” to the arresting gardaí is a question not amenable to a standard in law but is a matter solely within the remit of the trier of fact; (iv) the judge upheld the appeal on the basis that the District judge had afforded “an insufficiently generous measure of judgment” and “insufficient latitude” to the respective gardaí in the course of the arrests; (v) the judge erred in law by grounding his determination upon an irrelevant factor, that is, the “alleged” regularity of cases heard by the particular trial judge where the law was applied with a particular result.

Held by the Court that, in the circumstances, a failure on the part of a judge of the District Court to follow and apply correctly a binding precedent, where that jurisprudence leaves no room for uncertainty or ambiguity, renders the District judge’s decision amenable to review by the Superior Courts on a point of law. Insofar as the cases were concerned, The Court held that the District judge was required to make his findings on the basis of, and with full regard to, the decision of the Supreme Court in Cullen. The Court was satisfied that he did not do so.

The Court held that it agreed with the decision of the High Court judge in answering ‘No’ to the question posed by the District judge.

Appeal dismissed.

Judgment delivered by Mr. Justice Mahon on the 21st day of December 2016

1 This is an appeal against the judgment of the High Court (Barrett J.) dated 9th July 2015 and the related order of the High Court made on 16th July 2015, and perfected on 11th August 2015.

2 On 20th March 2015, Judge Bryan Smyth, a judge of the District Court, applied to the High Court by way of case stated in relation to three cases which had been heard by him, pursuant to s. 2 of the Summary Jurisdiction Act 1957 as extended by Section 51 of the Courts (Supplemental Provisions) Act 1961, on a point of law. The three cases, while unconnected as between each other, were all concerned with prosecutions for offences contrary to s. 4(4)(b) and (5) of the Road Traffic Act 2010, (drink driving).

3 Insofar as it is necessary to refer separately to the three cases, the following information is relevant:-

Mr. Pires

Mr. Pires was stopped at Fortunestown Road in Tallaght on 1st January 2014 on suspicion of drink driving. Gda. Brady handcuffed Mr. Pires while effecting his arrest. Gda. Brady told the District Court that he did so because Mr. Pires was intoxicated, was larger in stature than he was, he was on his own with him, and he had to transport him in a garda vehicle without an internal protective barrier. There was no evidence that Mr. Pires was aggressive or agitated at any time.

Mr. Corrigan

Mr. Corrigan was stopped at Finglas Road dual carriageway on 28th May 2014 by Gda. Murphy, his attention having been drawn to Mr. Corrigan when his vehicle collided with another vehicle at a roundabout. Having formed the necessary opinion as to the consumption of an intoxicant, Mr. Corrigan was arrested and taken to Finglas garda station. While effecting arrest, Gda. Murphy handcuffed Mr. Corrigan because he was ‘jittery’. He also said that the appellant hesitated when he placed his hand on Mr. Corrigan to usher him into the back of the patrol car. Mr. Murphy accepted that Mr. Corrigan was not aggressive and was co-operative. He was nevertheless concerned that Mr. Corrigan might become overwhelmed and react in panic because of the position he found himself in. He was also concerned that they were on a busy dual carriageway and that he had a duty of care to ensure the safety of the appellant and the public. He also had to convey Mr. Corrigan to a garda station in a garda patrol car which had no internal protective barrier. He said that he had applied the handcuffs for his own safety and that of the appellant.

Mr. Gannon

Mr. Gannon was stopped on the M50 in Blanchardstown in Dublin on 21st October 2013. Gda. Kelly told the District Court that he had noticed the appellant driving his Ford Focus van at excessive speed as it overtook a garda jeep in which he was a passenger. Mr. Gannon was travelling at one hundred and thirty kmH. The necessary opinion as to intoxication was formed when Mr. Corrigan was stopped by the gardaí and he was handcuffed in the course of effecting arrest. Gda. Kenny told the District Court that he was handcuffed for his own safety, for the safety of the gardaí and the safety of other road users as they were standing on the hard shoulder of the M50 which was very busy at the time. It was accepted that Mr. Gannon was compliant and was not aggressive.

4 In each of the cases, the validity of the arrest of the appellants was challenged on the basis that handcuffing was unnecessary and unwarranted. Having considered submissions from the parties in the three cases, the learned District judge decided that the handcuffing of the three appellants was not justified as a precautionary measure, (and, thus, rejected the evidence of the garda witnesses), and he proceeded to dismiss the cases on the basis of the decision in the Supreme Court decision in DPP v. Cullen [2014] IESC 7.

5 At the request of the prosecution the learned District Court stated a case to the High Court. In it, he posed the following question:-

‘Was I correct in law to find the arrest(s) unlawful?’

The Cullen case

6 Central to this case is the decision of the Supreme Court in Cullen. It concerned a driving prosecution in which the arrest of Mr. Cullen was challenged on the basis that he had been unnecessarily handcuffed at the time of his arrest. The facts in Cullen were that a garda sergeant observed Mr. Cullen's vehicle being driven in an erratic fashion. He stopped him, and having formed the necessary opinion as to the consumption of an intoxicant, decided to arrest Mr. Cullen. The garda sergeant accepted that Mr. Cullen had not used or threatened force in order to avoid arrest, nor had he formed the view to the effect that the conduct of the accused created in the mind of the sergeant a suspicion or concern that he might resist arrest unless restrained. The garda sergeant having placed Mr. Cullen in handcuffs conveyed him to the garda station. The garda sergeant stated that it was his normal practice to place such persons 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.

7 The questions posed by the learned Circuit Court judge for the opinion of the Supreme Court in Cullen were as follows:-

‘(i) On the evidence adduced was I entitled to hold that the placing of handcuffs on the accused following arrest was unjustified on the grounds that Sgt. 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?

And

(ii) 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 Sgt. Moyles was a conscious and deliberate breach of the accused's constitutional rights which rendered the accused's arrest and detention unlawful and which which obligated me to apply the exclusionary rule in respect of any evidence obtained thereafter?’

8 Fennelly J. answered the first question in the affirmative. He answered the second question by stating that the arrest was...