DPP v Warren
| Jurisdiction | Ireland |
| Judge | Ms. Justice Dunne |
| Judgment Date | 18 May 2006 |
| Neutral Citation | [2006] IEHC 189 |
| Court | High Court |
| Docket Number | 1310 $$/2005 |
| Date | 18 May 2006 |
[2006] IEHC 189
THE HIGH COURT
BETWEEN
AND
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)
ROAD TRAFFIC ACT 1961 S49(4)
ROAD TRAFFIC ACT 1961 S6(a)
ROAD TRAFFIC ACT 1994 S10
ROAD TRAFFIC ACT 2002 S23
ROAD TRAFFIC ACT 1994 S49(8)
DUNNE v CLINTON 1930 IR 366 1 FREWEN 563
DPP v MCCREESH 1992 2 IR 239
O'MAHONY v BALLAGH & DPP UNREP HIGH COURT O CAOIMH J 23.3.2001 2001/19/5337
DPP v MCCORMACK 1999 4 IR 158 2000 1 ILRM 241
O'BRIEN v SPECIAL CRIMINAL COURT & DPP UNREP HIGH COURT MACMENAMIN J 28.7.2005
OFFENCES AGAINST THE STATE 1939 S30
CRIMINAL LAW ACT 1997 S4
Criminal law - Arrest - Whether there was an arrest - Whether the arrest was valid - Road Traffic Act 1961, s. 49(8)
Facts: The respondent was charged with a drink driving offence. This was a case stated by the District Court in which questions were posed relating to validity of an arrest by the Gardai.
Held by Dunne J. in finding that there was a valid arrest that the respondent had been told to stay by the car and that a form of words indicating that the person was under restraint had been used.
Reporter: R.W.
This is a case stated by Bryan Smyth, Judge of the District Court assigned to the Dublin Metropolitan District in which he poses the following questions arising out of proceedings before him on 11th April, 2005:
i i. Was I correct in holding that there had not been an arrest by Garda McCaffrey?
ii ii. If there was an arrest by Garda McCaffrey, was it a valid arrest?
iii iii. If the arrest by Garda McCaffrey was not a valid arrest, does that affect the validity of the subsequent arrest by Garda Clancy?
iv iv. If I was correct in holding that there had not been an arrest by Garda McCaffrey was I correct in holding that the detention of the respondent was a lawful detention?
v v. If I was incorrect in holding that the detention by Garda McCaffrey was lawful does this render the subsequent arrest by Garda Denise Clancy invalid?
The facts giving rise to this case stated as set out in the consultative case stated and are as follows:
The accused appeared at a sitting of the District Court held at Swords on 11th April, 2005, to answer the following charge:
"that he on 11th day of September, 2004, at Glenellen Link Road, Swords, Dublin, in the Dublin Metropolitan District, drove a mechanically propelled vehicle registered number 99 D 46382 in a public place while there was present in his body a quantity of alcohol such that within three hours after still driving, the concentration of alcohol in his breath exceeded a concentration of 35mgs. of alcohol per 100mls. of breath contrary to s. 49 (4) and 6(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994 and as amended by s. 23 of the Road Traffic Act 2002."
The prosecutor was represented at the hearing by Ms. Lynda Mullin of the Chief Prosecutions Solicitors Office. The respondent was represented Mr. Ross Maguire B.L. instructed by Chris Ryan, solicitor.
The facts proved or admitted in evidence before the learned District Judge were set out in full in the consultative case stated and can be summarised as follows:
At approximately 2.10 am on 11th September, 2004, an off-duty Garda, Garda Phillip McCaffrey was driving on the Rathbeale Road. He saw a car, Reg. No. 99 D 46382 stopped in the middle of the road having exited from the left hand side. Garda McCaffrey and an oncoming taxi had to take avoiding action. Garda McCaffrey gave evidence that he formed the opinion that the driver was under the influence of an intoxicant. The driver then drove off in the direction of Swords and Garda McCaffrey followed him for approximately two miles. The driving was erratic. The driver eventually stopped his vehicle, Garda McCaffrey identified himself to the driver as member of An Garda Siochána and indicated to the driver that he wished him to get out of the vehicle. When he got out of the vehicle the driver was unsteady on his feet and there was a strong smell of alcohol from his breath and his eyes were glazed. Garda McCaffrey then informed the driver that he was of the opinion that he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. Garda McCaffrey then told the driver to wait at his vehicle while he went to get his mobile phone. As he did so the driver fled the scene on foot. Garda McCaffrey gave chase and apprehended the driver a short distance away. With the assistance of the taxi driver mentioned earlier Garda McCaffrey was able to call the Gardaí and members from Swords Garda Station arrived some time later. Garda McCaffrey in his evidence indicated that he detained the driver until the arrival of Garda Denise Clancy who was on duty. He stated that he did not arrest the driver specifically because he was off-duty.
Garda Denise Clancy then arrived at the scene. She had been informed that an off-duty member of An Garda Siochána had detained a man for suspected drink driving. She saw the respondent herein together with Garda McCaffrey. Garda McCaffrey explained the sequence of events and that he had detained the driver. Garda Clancy gave evidence that the respondent was very unsteady on his feet that his speech was slurred and that there was a strong smell of an intoxicant from his breath. She formed the necessary opinion and arrested the accused under s. 49(8) of the Road Traffic Act 1994 for drink driving, she cautioned him and explained the reason for his arrest in ordinary language. The respondent was then processed in the usual way.
At the conclusion of the evidence on behalf of the prosecutor, counsel on behalf of the respondent applied for a direction on the basis that the period during which the respondent was detained by Garda McCaffrey amounted to an unlawful detention and that evidence of what occurred thereafter was consequently not admissible in evidence. It was further submitted that the respondent had either been arrested by Garda McCaffrey and if so he (Garda McCaffrey) had failed to do so properly or alternatively had not arrested the respondent but had held him in unlawful custody. Ms. Mullin on behalf of the Director of Public Prosecutions referred to the case ofD.P.P v. Thomas Ballagh, (High Court, 2002 JR ???query???42) and outlined the facts of same. Following submissions the learned District Court judge ruled that "there had not been an arrest but that the respondent had been detained and that the detention was a lawful one."
In those circumstances the respondent requested that a case be stated to the High Court in the terms set out above.
Section 49(8) of the Road Traffic Act1961 provides for arrest without warrant in connection with drink driving offences. It provides as follows:
A member of the Garda Siochána may arrest without warrant a person who in the member's opinion is committing or has committed an offence under this section.
Garda McCaffrey stated in his evidence stated that "he did not arrest the driver specifically because he was off duty". The learned District Judge held that there had not been an arrest, was that ruling correct?
Ross Maguire appeared on behalf of the respondent and he contended that there was no arrest by Garda McCaffrey. He added that any detention was unlawful in the absence of an express authority to detain or in the absence of a lawful arrest. He placed particular reliance on the evidence of Garda McCaffrey to the effect that he had not arrested the respondent. He submitted that where a member of An Garda Siochána denies having arrested a person it is not open to a court to gainsay this and imply or infer an arrest. He argued that an arrest is a formal act which cannot be affected without the intention on the part of the arrestor to arrest.
Mr. Maguire pointed out that the respondent had been told that the Garda had formed an opinion under the Road Traffic Acts when the respondent got out of his car. No further words were used by Garda McCaffrey which would be required for effecting a lawful arrest. Mr Maguire urged that the court should look at what Garda McCaffrey did and what the purpose of acting as he did was. Garda McCaffrey held the respondent so that he could be arrested. Mr Maguire asked the question what authority he has to do this and concluded that he had no such authority and that therefore the respondent was in unlawful detention. On that basis he referred to the question as to what flows from that. He referred to a number of authorities on this point and I will come back to those authorities shortly. He argued that as there was no conclusion or ending of the unlawful detention that there was no subsequent valid arrest.
Paul Anthony McDermott appeared on behalf of the prosecutor. He submitted that contrary to the expressed view of Garda McCaffrey there was in fact an arrest. There was an attempt to flee the scene, the respondent was chased, apprehended and detained by Garda McCaffrey until the arrival of Garda Clancy shortly afterwards. Mr. McDermott referred to a line of authority to the effect that there is no difference between arrest and detention. I will refer to the authority cited later.
It would be helpful at this point to refer to the authorities referred to by counsel. The leading case cited is that ofDunne .v Clinton, [1930] I.R. 366 where it was held by the High Court that a detention in a Garda Barracks of persons who had not been expressly arrested or charged did amount to an...
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