Supreme Court dismisses appeal; unlawful arrest in private driveway due to withdrawn implied consent.

THE SUPREME COURT

34/00

McGuinness J.

Geoghegan J.

McCracken J.

In the matter of Section 2 of the Summary Jurisdiction Act, 1857

And in the matter of Section 51 of the Courts (Supplemental Provisions) Act, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

(at the suit of Garda Donnacha Riordan)

Appellant

and

ALAN MOLLOY

Respondent

JUDGMENT delivered on the 28th day of February, 2003 by McCracken J.

This was an appeal by way of case stated by Judge John P. Brophy arising out of the prosecution of the respondent for certain

offences under Section 13 of the Road Traffic Act, 1994.

The net point at issue is whether the respondent was lawfully arrested. The background to the case is clearly and helpfully set out in

the case stated and it is not necessary to repeat the entire of it in this judgment. Briefly, the prosecuting Garda was on duty as an

observer in a patrol car at a checkpoint near Clonee, Co. Meath. A car approached the checkpoint, stopped about a hundred meters

from it, turned, and headed back towards Clonee. The Gardai pursued this car, which drove into a gateway of a house in Clonee. The

Gardai followed the car into the driveway and found the respondent on his own in the car. He was asked for his name and address,

which he gave, and then told the Gardai that, “it was his house that he was parked in front of”. His speech was incoherent and

slurred and there was a smell of alcohol off his breath, and he was asked to step out of the car. When he did so, he stumbled, and

had to be supported by one of the Garda. At this stage the prosecuting Garda formed the opinion that the respondent was incapable

of having control of a vehicle, due to consumption of intoxicating liquor, and told the respondent that he was of the opinion that the

respondent had committed an offence under one of several sections of the Road Traffic Acts and explained to the respondent that he

was arresting him for drunk driving.

The Garda then cautioned the respondent in the normal way and in response, the respondent told the Garda that he the Garda could

not arrest him, as the arrest was an unlawful arrest since the Garda had followed him into his driveway. The respondent became

abusive, had to be handcuffed, and was taken to Dunboyne Garda Station. The respondent refused to give a blood or urine sample

and was charged with an offence under Section 13(3) of the Road Traffic Act, 1994. This charge was dismissed in the District Court

on the grounds that the arrest of the respondent had been unlawful. The District Judge agreed to state a case for the High Court as

to whether he was correct in law in dismissing this charge on the ground that the arrest of the respondent had been unlawful, as the

same had taken place on his own private driveway.

The offence with which the respondent was charged was that he refused or failed to comply with the requirement to permit a

designated doctor to take a specimen of his blood or to provide a specimen of urine. The requirement to do so, under Section 13(1) of

the Road Traffic Act, 1994, only arises where the person concerned has been arrested, and there can be no doubt that if there was

no lawful arrest of the respondent in the present case, then he was not obliged to give the specimen, either of blood or urine. The

essential point of the case is whether the respondent was lawfully arrested. The learned High Court judge held that the arrest was

unlawful and that the decision of the learned District judge was correct.

In Director of Public Prosecutions –v- Forbes (1994) 2 I.R. 542 the defendant had driven into the driveway of a private house

belonging to a third party. It was held by the Supreme Court that the arrest was lawful and in his judgment at page 548 O’ Flaherty J.

said:-

“It must be regarded at axiomatic that any householder gives an implied authority to a member of the Garda to come onto

the forecourt of his premises to see to the enforcement of the law or to prevent a breach thereof. It will be clear that this

case is not concerned with any question of entering a dwelling house and, therefore, there is not in the instant case any

question of any form of implied waiver of any constitutional right. Further, like any implied authority, it is an implication which

the evidence may, on occasion, rebut”

In that case there was, of course, no question of there being evidence that the owner of the property had in some way revoked the

implied authority to enter. I have no doubt that when the Garda entered the respondent’s premises, he was doing so on the basis of

an implied authority, and the only question to be considered by the Court is whether such authority still remained valid at the time of

the arrest of the respondent.

The case relied upon by the learned High Court judge and in the District Court, and which is relied on by the respondent in this court,

is Director of Public Prosecutions –v- McCreesh (1992) 2 I.R. 239. As in the present case, the prosecuting Garda became suspicious

of the actions of the respondent’s motor car, tried to overtake it unsuccessfully, and the car turned into the respondent’s own

driveway. The driver got out of the car and the Garda formed the view that he had committed the offence commonly known as

drunken driving. He informed the driver that he was arresting him. When the driver was informed of this, he told the Garda that he

was a trespasser and was on private property and should leave immediately. The Garda then put his hand on the drivers’ arm and said

he was arresting him and brought him to the Garda car. Hederman J. said at page 250:-

“An arrest consists in or involves the seizure or touching of a person’s body accompanied by a form of words which indicate to

that person that he is under restraint. Whilst the older cases held that words alone would not suffice to constitute an arrest,

nowadays words alone may amount to an arrest if, in the circumstances, they are calculated to bring, and do bring, to the

person’s notice that he was under restraint and he submitted to the compulsion – see e.g. Alderson –v- Booth (1969) Q.B. 216

On the facts as found by the learned Circuit Court judge, it is clear that the defendant, on first being told that he was under

arrest, did not submit to the compulsion - on the contrary, he told the Garda that he was on private property and was a

trespasser and should leave immediately. The relevant ‘arrest’ in this case therefore took place subsequently when the Garda

took the defendant by the arm and told him he was arrested and must come to the Garda Station.”

I can see little or no distinction between that case and the present case. It is clear from the case stated that the Garda only formed

the opinion that the respondent had consumed intoxicating liquor to such an extent as to be incapable of having proper control of a

mechanically propelled vehicle in a public place when the respondent got out of the motor car in his own driveway. He was then told

by the Garda that he was being arrested and was cautioned, and he told the Garda that the arrest was unlawful since it took place in

his driveway. It was only then that the Garda physically restrained the respondent by handcuffing him.

I am quite satisfied that the respondent never submitted to being under restraint or, in the words of the judgment in Director of Public

Prosecutions –v- McCreesh, never submitted to the compulsion. I am also quite satisfied that the words used by the respondent were

quite clearly a withdrawal of any implied consent to the Garda being on his driveway.

In those circumstances, I am satisfied that at the time of the actual arrest, that is the physical restraint of the respondent, the

implied consent had been withdrawn, the Garda was a trespasser and the arrest was unlawful.

I would dismiss this appeal.