Court of Appeal dismisses appeal against drug possession conviction, upholding reasonable use of handcuffs during detention.

THE COURT OF APPEAL

Record No. 43/2014

Birmingham J.

Mahon J.

Hedigan J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

JASON O’BRIEN

APPELLANT

JUDGMENT of the Court delivered on the 11th day of June 2018 by Mr. Justice Mahon

1. The appellant was tried by jury and convicted at Dublin Circuit Criminal Court of possession of Diamorphine on the 19th May 2010

contrary to s. 3 of the Misuse of Drugs Act 1977, as amended. He was also tried on a second count, that of possession of

Diamorphine for the purposes of sale or supply contrary to s. 15 of the Misuse of Drugs Act 1977, as amended, on the same date, but

the jury disagreed in respect of this count. A nolle prosequi was subsequently entered to this count on behalf of the respondent. The

appellant received an entirely suspended twelve month sentence in respect of the count of which he was found guilty. He has

appealed his conviction.

2. On the 19th May 2010 the appellant and another man, later his co-accused, were observed by two gardaí counting money in a

Citroen car in the Whitethorn area of Clondalkin in County Dublin. One of the gardaí, Garda Matheson, formed a reasonable suspicion

that these males were involved in a drugs transaction. He indicated his intention to search the appellant pursuant to s. 23 of the

Misuse of Drugs Act 1977, as amended, and the appellant consented. Nothing of evidential value was found on his person. The

second man, Mr. Heffernan, was also searched and €3,200 in cash was found on his person. His explanation for carrying such a large

sum of cash was that it was for rent. The motor car was also searched, but nothing of interest was found in it. Later on the same

date, the same two gardaí noticed the same Citroen motor car on the Nangor Road heading towards Clondalkin village. The car was

stopped, and the appellant consented to himself and his motor vehicle being searched. Nothing was found in the motor vehicle, but

€1,200 in cash was found on Mr. Heffernan’s person, some €2,000 less than the amount found in the course of the previous search.

The appellant and his car were conveyed to Clondalkin garda station, and in the course of a more detailed search of the motor car a

package was found at the back of the radio. It contained brown powder which was suspected to be Diamorphine, of approximately 56

grammes in weight. The appellant was then released from his detention pursuant to s. 23 of the Misuse of Drugs Act 1977 (as

amended) and immediately arrested pursuant to s. 25 of the 1977 Act for an offence contrary to s. 15 of that Act. In the course of

being interviewed by the gardaí the appellant admitted to being the owner of the heroin found in the vehicle, and he said he had paid

€1,600 for the drugs.

3. The appellant’s grounds of appeal against conviction are that the learned trial judge:-

• erred in his legal determinations and rulings and in particular he misconstrued and misinterpreted and failed to properly

apply precedent in relation to s. 23 of the Misuse of Drugs Act 1977 to 1984, and

• failed to vindicate the appellant’s constitutional rights and erred in that he admitted evidence that he should not have

so admitted, and

• erred in making a distinction between the concept of “detention” and “arrest”, and

• permitted the prosecution to rely on evidence obtained in consequence of a deliberate and conscious violation of the

appellant’s constitutional rights.

4. In his written submissions to this court the appellant submits the following:-

“There is a net issue at play in this case; the admissibility of evidence. The judge upheld the DPP’s submission and so

ruled that a “detention” for a drugs search is something other than an “arrest”, even in the circumstances here where

the appellant had been handcuffed, was so transported in a garda car to a garda station, was recorded as a prisoner in

a garda “custody record” and was confined to a garda cell for forty minutes whilst his car was searched. The appellant

submitted to the learned trial judge and herein maintains that no valid legal distinction can be drawn between a

“detention” and an “arrest”.

5. Section 23 of the Misuse of Drugs Act 1977, as amended, empowers gardaí to search and detain where certain statutory

prerequisites have been met. The relevant sections of the legislation are:-

“23(1) A member of the Garda Síochána who with reasonable cause suspects that a person is in possession in

contravention of this Act of a controlled drug, may without warrant:-

(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is

reasonably necessary for making the search,

(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and for the purpose of

carrying out the search may, if he thinks fit, require the person who for the time being is in control of such

vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle,

vessel or aircraft is already stationary, to refrain from moving it, or

(c) seize and detain anything found in the course of a search under this section which with such cause appears to

him to be something which might be required as evidence in proceedings for an offence under this Act.

(1A) Where a member of the Garda Síochána decides to search a person under this section, it may require the person to

accompany him to a garda station for the purpose of being so searched at that station.

(1B) Where a member of An Garda Síochána decides to search a vehicle, vessel or aircraft under this section he may as

regards the person who appears to him to be the owner or in control or charge for the time being of the vehicle, vessel

or aircraft make any one or more or all of the following requirements:-

(a) require such person, pending the commencement of the search, not to remove from the vehicle, vessel or

aircraft, as may be appropriate, any substance, article or other thing,

(b) in case the decision relates to a vehicle and the place at which he finds the vehicle is in his reasonable opinion

unsuitable for such search, require such person forthwith to take the vehicle or cause it to be taken to a place,

where he considers suitable for such search and which is specified by him,

(c) require the person to be in or on or to accompany the vehicle, vessel or aircraft, as may be appropriate, for

so long as the requirement under this paragraph remains in force.

(1C) Where there is a failure to comply with a requirement made under this section the following provisions shall apply:-

(a) in case the requirement was made under subsection (1A) of this section, the member of the Garda Síochána

concerned may arrest without warrant the person of whom the requirement was made, and

(b) in case the requirement is a requirement mentioned in paragraph (b) of subsection (1B) of this section, such

member may take the vehicle concerned, or cause it to be taken, to a place which he considers suitable for a

search under this section.

(1D) Where a requirement is made of a person under this section:-

(a) in case the requirement is a requirement mentioned in paragraph (c) of subsection (1B) of this section, if at

any time while the requirement is in force the person of whom it was made is neither in nor on nor accompanying

the vehicle, vessel or aircraft, as may be appropriate, in relation to which the requirement was made, he shall be

guilty of an offence,

(b) in case of any other requirement under this section the person who fails to comply with the requirement shall

be guilty of an offence.

(1E) A requirement mentioned in paragraph (c) of subsection (1B) of this section shall remain in force until the search in

relation to which it is made is completed.

(1F) Where a requirement described in paragraph (a) of subsection (1B) of this section is made of a person, the search

in relation to which the requirement is made shall be carried out as soon as is practicable.

(2) Nothing in this section shall operate to prejudice any power to search, or to seize or detain property which may be

exercised by a member of the Garda Síochána apart from this section.”

6. Extensive and prolonged submissions were made in the High Court by Mr. Kelly BL (counsel for the appellant) and Mr. Spencer BL

(counsel for the co-accused, Mr. Heffernan) in relation to issues concerning the search of the appellant (and Mr. Heffernan) at the

roadside, the search of the vehicle at the roadside, the conveying of the men and the motor vehicle to Clondalkin garda station, the

circumstances in which the appellant was detained in the garda station and his vehicle searched, in the course of which search the

illicit drugs were located. Two primary issues appear to arise from the events that occurred at the roadside and in the garda station.

The first concerns the question as to whether, in reality, the appellant was arrested at the time he was conveyed back to Clondalkin

garda station, and remained in the garda station under arrest during the period when the car was being searched, or whether he was

merely detained as permitted by the relevant legislation. The second issue, and which is essentially interlinked with the first issue, is

whether the evidence of the drugs find in the back of the radio in the car was properly admissible evidence in circumstances where, it

is contended, the appellant was unlawfully detained having been arrested.

7. It is common ground that when the car was stopped at the roadside its occupants, the appellant and his co-accused, were

searched and nothing was found. The gardaí wished to carry out a more thorough search and to facilitate this, the two men and the

car were conveyed back to Clondalkin garda station. During this trip the appellant was handcuffed (as was Mr. Heffernan). On arrival

at Clondalkin garda station he was handed over to the member in charge and his rights were read over to him. He was then taken to a

cell, searched, and then left in the cell while the car was subjected to a thorough search. It is also common ground that the appellant

was at all time co-operative with the gardaí, and took no objection to either himself or his car being searched. It is argued on behalf

of the appellant that what occurred was not a mere detention as permitted under s. 23 of the Act of 1977 (as amended), but was,

instead, an arrest in circumstances which were not permitted under s. 23. The power to arrest under that section was only available

in a situation where the person failed to comply with a reasonable requirement to accompany gardaí to a garda station for the

purposes of conducting a search.

8. In submissions made to the learned trial judge in advance of his conclusive ruling on Day 3 of the trial the circumstances in which

the appellant and his co-accused were stopped searched and detained were exhaustively discussed. The main issue raised on behalf

of the appellant is best summarised by quoting the following extract from submissions made by Mr. Kelly after the learned trial judge’s

ruling in an effort, unsuccessfully, to persuade the learned trial judge to re-open the matter:-

“The other aspect, Judge, that I - that's just not covered by your ruling that I just ask perhaps it be so covered, if it

may, is that you might recall the evidence that Mr O'Brien was brought to the station for his search. That took about

five minutes. He was detained in a cell for 40 minutes while his car was being searched. I say he was in unlawful custody

at that stage while the car was being searched, while products in the car were procured, and that would mean that that

evidence was procured whilst he was in unlawful detention. Nothing of evidential was found after a five minute search.

There was no cause for him to be in continuing detention thereafter. And anything found while he was in that state could

not be admitted as against him. I think that's an important consideration..”.

9. The relevant extract from the ruling of the learned trial judge was as follows:-

“Now, first of all, that I suppose in historical terms the power to detain and search is a pretty modern concept. It was

introduced by statute, as was the power to, indeed, interview, detain and interview. At one stage the only real power a

guard had was to arrest. And historically there was a lot of, I suppose, debate what was meant to be helping guards

during inquiries and all of these interviews and all and the question Dunne v. Clinton and when was a person free to leave

a garda station and when wasn't he free and all of that. One time a definition of arrest was to - to arrest somebody was

to bring him almost instantaneously before a Court to be dealt with. That was the historical understanding of arrest.

Then I think various Acts brought in, gave the ability to the guards to actually interview to detain for the purposes of

interviewing them and then they brought in the concept in relation to drugs is to detain for the purposes of a search.

Now "detain" is a word that we use all the time. It implies some restraint on liberty. Obviously "arrest" has a particular

meaning as well. But the act that the guards proceeded to on the date in question was section 23 of the drugs

legislation, the main act was the 1977 Act. And section 23 says: "A member of the Garda Síochána who with reasonable

cause suspects that a person is in possession in contravention of this Act of a controlled drug, may without warrant, (a)

search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably

necessary for the making of the search." This section was amended and probably added to by 1(a): "Where a member

of An Garda Síochána decides to search a person under this section, he may require the person to accompany him to a

garda station for the purposes of being searched at that station." So basically, what happened on the Naas Road, the

guards stopped them, they had reasonable cause to suspect that there were drugs either on the persons of the two

gentlemen or in the car. They decided to search. They decided the Naas Road wasn't a suitable place to search, so they

searched in Clondalkin Garda Station. And the section is "Where a member of An Garda Síochána decides to search a

person under this section, he may require ..." now, require is not request, he may require. That's, I will say, close to an

order; and if that requirement is not acceded to, he can arrest basically. So basically under 23 and under 23, 1(a), he

has a power, in my view, to detain. It seems to be, I think by reason of the use of the words; "where a person decides

to search a person under this section", that means section 23, which gives the power to detain.

The question is by whether by putting these two men into the car, which they did - it seems three people but two is

obviously the primary concern because no action was taken against the third party and obviously no action was taken

against the infant -these two men into the car and handcuffing. Does it in some way interfere or change the nature of

what the guards did to bring them outside section 23 and the 1(a) provision. Does handcuffing and putting them into the

car and bringing them to a garda station somehow render what the guards did unlawful and illegal? I've looked at it and

I've tried to look to the scheme of the Act, and it seems to me for me to accept that submission would run contrary to

the purpose and indeed the plain words of the Act because 1(a) indicates where a member searches a person under the

section, the section is 23, and section 23 gives a power to detain. Now, there has been very little debate what's the

difference in actual terms between detention and arrest. Both imply to some degree a restraint on the liberty of the

citizen. But detain has a view and detain means that you can restrain somebody in some ways from going about their

business until a search is completed. And they did that; they put him into the car and brought him to the garda station.

And I'm satisfied in this case that they acted in compliance with the section and section 1(a). I think if, for instance,

1(a) turned - the argument would be turned into some type of other different type of power completely, that no power

of detention is given by 1(a), then it doesn't make sense. I think the power of detention persisted from the stoppage

until the search and until the release from the provisions of 23(a) and then they were detained again it seems for the

purpose of interview and after interview they were released and a file was sent.

… So I cannot fault the detentions in this case or the arrests in this case.”

10. The issue of distinguishing detention from arrest was considered in the case of O’Callaghan v. Ireland & Ors. [1993] 1 I.R. 555

wherein the Supreme Court considered the constitutionality of s. 23 of the Misuse of Drugs Act 1977 (as amended). The Supreme

Court upheld the constitutionality of the section. The head note to the reported decision states, inter alia:-

“3. That the Court was in agreement with the conclusion of the High Court that the exercise of the impugned powers

might often be in ease of a suspect, in that a suspect who transpired not to be in possession of a controlled substance

might simply be searched rather than arrested, brought to a garda station and then searched.

4. That a person lawfully detained by a member of the Garda Síochána for the purposes of a search under s. 23 of the

Act of 1977, would have appropriate rights concerning access to legal advice, freedom from harassment, interrogation

and assault, and all the other rights appropriate to an arrested person.”

11. In DPP v. Gareth Byrne [2014] IEHC 394, a case stated by a judge of the District Court, the provisions of s. 23 of the Misuse of

Drugs Act 1977 (as amended) were considered. In the course of his judgment, Hedigan J. held that the detention at the roadside

under s. 23 of the 1977 Act (as amended) was lawful. In this course of his judgment he stated:-

“…Section. 23 (1E) makes it clear that if a member of An Garda Siochana makes a requirement under s. 23 (1B)(c), this

requirement remains in force until the search on the vehicle has been completed.”

12. Hedigan J. also stated, at para. 4.2:-

“Hence, a member of An Garda Siochana has an explicit power under s. 23(1) (a) to search a person he believes may be

in possession of a controlled substance, and may detain that person for a reasonable period of time for the purpose of

carrying out that search.”

13. In purely practical terms there may often be little to distinguish between detention and arrest in that both will involve some

restriction on free movement. In Walsh on Criminal Procedure (Second Edition) it is stated at para 5.11:-

“..For example, certain statutory powers of search short of arrest permit the police to take a person to a police vehicle

or other secure place and to keep the person at that place for a period of time in order to conduct a body search. It is

at least arguable that this amounts to detaining the person in police custody and that the normal protections for a

suspect in police custody should apply…”

14. Detention pursuant to s. 23 of the Act of 1977 (as amended) clearly implies some restriction on free movement. If that was not

the case, the use of the term detention would be meaningless. The manner in which detention in any particular case is to be effected

or managed is normally a matter for the detaining garda depending on the prevailing circumstances. It may involve the use of

handcuffs in order to ensure that detention is effectively maintained for so long as it is legally permitted. Equally, in particular

circumstances, it may justify a person being held in a room or a cell in a garda station. The issue of the justification for the use of

handcuffs was considered by the Supreme Court in DPP v. Cullen [2014] IESC 7, albeit it in an appeal from the decision in a case

stated to the High Court, and in the context of an arrest. In the course of his judgment in that case, Fennelly J. stated (at para

26):-

“I would entirely accept that any individual member of An Garda Síochána is fully entitled to and may well be obliged to

apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular

case. The decision must be left to the individual garda dependent on his or her own appreciation of the requirements of

the individual case. The nature of the offence, the prevailing circumstances, the personality and character of the

individual to be arrested must be taken into account. The law is realistic. It is appreciated that decisions on the

necessity for an arrest, the appropriate amount of force and the need for the use of handcuffs are often made under

pressure of circumstances of urgency, of danger of flight, and of violence and the threat of violence. Ordinarily, courts

are slow to review decisions of garda officers made in the wide range of situations with which they are confronted in the

course of their duty.”

15. In the instant case, the appellant and his co-accused were handcuffed while in detention pursuant to s. 23 of the 1977 Act (as

amended) n the course of being conveyed in a garda car to Clondalkin garda station. The use of handcuffs in such circumstances,

and with due regard to the purpose and suspicion which prompted the “detention” in the first place and the perceived necessity to

conduct a more thorough search of the appellant and his co-accused cannot be said to have been unreasonable, and certainly did

not transform their detention into their arrest. The use of handcuffs while in the garda patrol car on an individual detained as part of

a process associated with the investigation of a crime, and possibly a serious crime could not be said to be unreasonable in the

context of the safety of accompanying gardaí and other road users.

16. Furthermore, and irrespective of where the appellant was, or what his status was at any particular time in the course of the

events of the 19th May 2010 the gardaí were entitled to search the Citroen motor car (s. 23(1)(b) of the Act of 1977, as amended),

and to ‘seize and detain…as evidence in proceedings…’ the Diamorphine found in the vehicle (s. 23(1)(c) of the Act of 1977, as

amended).

17. The court is therefore satisfied that none of the grounds of appeal argued can succeed and will therefore dismiss the appeal.