DPP v Pires and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 09 July 2015 |
| Neutral Citation | [2015] IEHC 671 |
| Court | High Court |
| Date | 09 July 2015 |
[2015] IEHC 671
THE HIGH COURT
Crime & Sentencing – Summary Jurisdiction Act, 1857 – The Courts (Supplemental Provisions) Act, 1961 – S. 4(4) (a) and s. 5 of the Road Traffic Act, 2010 – Appeal against dismissal of charge by District Court – Principles for handcuffing an individual
Facts: The prosecutor/appellant had filed an appeal against the order of a District Judge dismissing the charges against each of the respondent/accused by way of case stated under s. 2 of the Summary Jurisdiction Act, 1857. The District Judge had put forward a question as to whether he was correct in law to find the arrest of the accused persons unlawful.
Mr. Justice Max Barrett held that the District Judge had erred in law while determining that the arrest of the accused persons was unlawful. The Court observed that the procedure available under the Summary Jurisdiction Act, 1857 was exclusively confined to correcting errors of law by an inferior court and it was not available to a party dissatisfied with the decision of the inferior court on the ground that the court had taken one view rather than another. The Court held that the District Judge had failed to conform to the principles laid down in DPP (Moyles) v Cullen [2014] IESC 7 that the Garda was allowed to use reasonable force when making an arrest and that he should apply generous measure of judgment as to what force was reasonable and that an error of judgment by a Garda in applying force which he genuinely believed to be necessary would not render the arrest invalid. The Court held that while handcuffing an individual, his behaviour, character, demeanour and personality must be considered by the Garda. The Court found that the District Judge had insufficient regard to the uncommonness of the situations in the present case that led to the handcuffing by the Garda. The Court found that the submissions of the DPP in the present case, namely, the bigger stature of the first named accused compared to the Garda coupled with the lack of prisoner-protective equipment in the Garda traffic vehicle, the intoxication of the second named accused being transported by the Garda on a dual-carriageway and the arrest of the third named accused on the M50 motorway where high-speed cars were travelling past the Garda traffic vehicle represented uncommon situations that led the Garda in each case to handcuff the accused persons.
The within appeals concern arrests made in the context of drink-driving offences. The law as argued at the appeals, and this judgment in its scope, are concerned with that context only.
In DPP (Moyles) v. Cullen [2014] IESC 7, the defendant had been arrested on suspicion of drunk driving and immediately handcuffed in circumstances where the arresting sergeant had a policy of handcuffing all such suspects irrespective of the circumstances but had also formed the necessary opinion to justify an arrest under the provisions of the Road Traffic Act. Following his arrest, Mr Cullen was subjected to a breath test under s. 13(1)(a) of the Road Traffic Act, 1994, as amended. That breath test resulted in a reading in excess of the permitted amount.
The issue which arose at Mr Cullen's trial and which was subsequently the subject of a consultative case stated by the Circuit Court to the Supreme Court, pursuant to s. 16 of the Courts of Justice Act 1947, concerned the lawfulness of the actions of the arresting sergeant in immediately handcuffing Mr Cullen and the consequences, if any, for the charges brought against Mr Cullen for drunk driving. The majority judgment of Fennelly J. in Cullen is authority for the principles set out hereafter:
2 (1). The power of arrest may only be exercised with the use of such force as is reasonable in all the circumstances. (Fennelly J., paras. 17, 38).
2 (2). An arresting Garda makes a judgment as to what force is reasonable in the circumstances. The law allows a generous measure of judgment in this regard. (Fennelly J., paras. 17, 38).
3 (3). An error of judgment by a Garda in applying force s/he genuinely believes necessary will neither (i) render the arrest invalid, nor (ii) expose the officer to civil or criminal liability. (Fennelly J., para.17).
2 (4). Every Garda is entitled, and may be obliged, to apply handcuffs to an arrested person where s/he genuinely believes that necessary in the particular case. (Fennelly J., para.25).
3 (5). The decision as whether or not to apply handcuffs must be left to the individual Garda dependent on his or her own appreciation of the requirements of the individual case. (Fennelly J., para.25).
4 (6). When a Garda is considering whether to apply handcuffs, the following factors must be taken into account: (i) the nature of the offence; (ii) the prevailing circumstances; and (iii) the 'BCDP' (behaviour, character, demeanour, personality) of the individual to be cuffed. (Fennelly J., paras.25, 38).
5 (7). A realistic latitude is shown by the law to the Gardaí in this regard. (Fennelly J., para.25).
6 (8). Despite the generous measure of judgment allowed, and the realistic latitude shown, to an arresting Garda, circumstances may present in which a court later determines that particular handcuffing was unlawful. Because of the generous measure of judgment allowed, and the realistic latitude shown, to the arresting Garda, such circumstances should be uncommon. The 'blanket policy' of cuffing applied in Cullen is an example of the uncommon. (Fennelly J., paras. 25, 38, 40).
2 (9). Ordinarily, the courts are slow to review operational decisions of individual Garda officers made in the wide range of situations which they confront in the course of their duty. (Fennelly J., para.25).
3 (10). In the extraordinary event of a review, the effect of Principles (2) and (7) is that even though the test of reasonableness is objective, it allows a generous measure of judgment and a realistic latitude to the arresting Garda.
2 (11). A lawful arrest is a pre-requisite to the authority under road traffic legislation to make lawful demand that a suspect provide samples of blood, urine or breath. (Fennelly J., paras. 33, 35).
3 (12). An arrest may be invalid if, in the absence of lawful authority or consent of the owner, it is carried out on private property. (In the road traffic context, lawful authority presents under s.7 of the Road Traffic Act 2010). (Fennelly J., para.35).
4 (13). A detention originally lawful can become unlawful where a suspect is held in detention without justification. (Fennelly J., para.35).
5 (14). Public depiction of any person, but particularly an unconvicted prisoner, in handcuffs, is a depiction of that person in a position of humiliation and indignity. (Fennelly J., para.39). However, if this Court might add a gloss that seems implicit in Cullen, the public handcuffing of an individual, in and of itself and without other circumstances presenting, will not render an arrest unlawful.
The within proceedings involve appeals by the Director of Public Prosecutions by way of case stated pursuant to s.2 of the Summary Jurisdiction Act, 1857, as extended by the Courts (Supplemental Provisions) Act, 1961. The Director asserts that the learned District Judge Bryan Smyth erred in law in dismissing in each case a charge laid against each respondent/accused alleging a breach of s.4(4)(a) and (5) of the Road Traffic Act, 2010. The court proceeds now to consider the pertinent facts of each appeal.
The relevant facts are as follows: (i) Mr Pires was swerving from side to side as he drove on Fortunestown Way and on Tallaght By-Pass; after being signalled to stop it took approximately 0.5km to come to a complete stop on Tallaght By-Pass; (ii) Garda Brady handcuffed Mr Pires after evaluating the situation; (iii) Mr Pires was intoxicated; (iv) Garda Brady did not know the background of Mr Pires, Mr Pires was of a bigger stature than Garda Brady, and the two men were on their own; (v) Garda Brady had to transport Mr Pires in a Garda traffic jeep, which has no protective equipment for prisoners; (vi) Garda Brady stated that he was of the opinion that, if not handcuffed, Mr Pires could exit the vehicle at any time or could attack Garda Brady while he was driving. Garda Brady further stated that if Mr Pires had become difficult while being transported, this would have become a high-risk situation.
In the District Court, the DPP submitted to the court that the evidence established that not handcuffing Mr Pires would have entailed Garda Brady taking an unjustifiable risk for his safety, for the safety of Mr Pires, and for the safety of the public at large, in circumstances where Mr Pires may have become difficult, caused a disturbance or attempted to flee as Garda Brady drove him to the Garda Station.
Having considered the evidence in the case, the submissions made and the judgment in Cullen, the learned District Judge found as a fact that (a) the behaviour of Mr Pires in his interaction with Garda Brady and the reasons for handcuffing as given in evidence...
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