Supreme Court dismisses appeals where District Judge applied an objective test to handcuff use, violating Cullen principles requiring deference to Garda judgment.

THE SUPREME COURT

[Appeal No. S:AP:IE:2017:000064]

[Appeal No. S:AP:IE:2017:000067]

[Appeal No. S:AP:IE:2017:000070]

O'Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/PROSECUTOR

AND

CICERO PIRES

AND

JAMES CORRIGAN

AND

PAUL GANNON

APPELLANTS/ACCUSED

JUDGMENT of Ms. Justice Dunne delivered the 23rd day of October, 2018

1. This is an appeal by Mr. Pires, Mr. Corrigan and Mr. Gannon (hereinafter referred to as the Appellants) from a decision of the Court

of Appeal (Mahon J., Sheehan and Edwards JJ. concurring) of the 21st December, 2016 dismissing the Appellants' appeal against a

judgment of the High Court (Barrett J.) of the 9th July, 2015.

2. In a series of determinations dated the 31st July, 2017, this Court granted leave to appeal to the Appellants in respect of the

following two issues:

"(a) Did the High Court and Court of Appeal correctly apply the scope and principles contained in s.2 of the Summary

Jurisdiction Act, 1857, as amended?

(b) Did the High Court and Court of Appeal correctly apply the law as decided in DPP v. Cullen?"

3. It is necessary to set out the background and procedural history of these cases in order to understand how the issues in respect

of which leave was granted have arisen.

Background and procedural history

4. The genesis of these cases, while unconnected to each other in any material sense, arises from three appeals to the High Court by

way of case stated from Judge Bryan Smyth, a judge of the District Court, on 20th March, 2015, pursuant to s. 2 of the Summary

Jurisdiction Act 1857, as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961, (hereinafter referred to as the Act of

1857) on a point of law. The three cases concerned prosecutions for offences contrary to ss. 4(4)(b) and (5) of the Road Traffic Act

2010.

5. A summary of the factual circumstances in relation to each of the Appellants is to be found in the judgment of the Court of Appeal

and it would be helpful in order to spell out the nature of the issues that arises to quote from that summary as follows:

"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 (sic) 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."

Judgment of the High Court

6. First of all it is necessary to look at the conclusions of the learned trial judge as to the scope of s. 2 of the Summary Jurisdiction

Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1961 and to that end, it would be useful to set out the

relevant statutory provisions.

7. Section 2 of the Act of 1857 provides that:

"After the hearing and determination by a justice or justices of the peace of any information or complaint, which he or

they have power to determine in a summary way by any law now in force or hereafter to be made, either party to the

proceeding before the said justice or justices may, if dissatisfied with the said determination as being erroneous in point of

law, apply in writing within three days after the same to the said justice or justices, to state and sign a case setting forth

the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be

named by the party applying; and such party, herein-after called the appellant, shall, within three days after receiving

such case, transmit the same to the court named in his application, first giving notice in writing of such appeal, with a

copy of the case so stated and signed, to the other party to the proceeding in which the determination was given,

herein-after called the respondent."

Section 51 of the Act of 1961 provides at subs. (1) as follows:

"Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings

whatsoever heard and determined by a justice of the District Court (other than proceedings relating to an indictable

offence which was not dealt with summarily by the court) if dissatisfied with such determination as being erroneous on a

point of law, to apply in writing within fourteen days after such determination to the said justice to state and sign a case

setting forth the facts and the grounds of such determination for the opinion thereon of the High Court."

The jurisdiction of the High Court is provided for in s. 6 of the Act of 1857 as amended and it provides that:

"[The High Court] shall hear and determine the question or questions of law arising thereon and shall thereupon reverse,

affirm or amend the determination in respect of which the case has been stated, or remit the matter to the justice or

justices with the opinion of the Court thereon, or may make such other order in relation to the matter, and may make

such orders as to costs as to the Court may seem fit; and all such orders shall be final and conclusive on all parties . . ."

8. The learned trial judge reviewed a number of decisions of the High Court and the Supreme Court in relation to the jurisdiction of the

High Court in an appeal by way of case stated. Thus, he referred to the decision in the case of Clune v. DPP and Ors. [1981] I.L.R.M.

17, Fitzgerald v. DPP [2003] 3 I.R. 247, DPP v. Nangle [1984] I.L.R.M. 171, DPP v. Noonan (Unreported, High Court, Ó’Caoimh J., 16th

December, 2002), culminating with a decision in the case of DPP v. Dardis [2015] IEHC 53 in which Hedigan J. applied the decisions in

Fitzgerald and Nangle. Hedigan J. in that case pointed out the limited nature of appeals brought under s. 2 of the Act of 1857:

"This is a procedure exclusively confined to correcting errors of law by an inferior court in the determination of

proceedings before it. See The Director of Public Prosecutions v. Nangle [1984] I.L.R.M. 171. It is confined to a party who

is ‘dissatisfied with the said determination as being erroneous in point of law’. It is not available therefore to a party

dissatisfied with the decision of the District Court on the grounds that the District Court Judge has taken one view rather

than another of the evidence or has accorded credence to one witness and withheld it from another. See Fitzgerald v.

The Director of Public Prosecutions [2003] 3 I.R. 247.”

The learned trial judge further noted that Hedigan J. said at p. 8 of his judgment that the Court could not intervene even if it were to

disagree:

"It seems to me that this was a finding of fact reasonably made by a trial judge who had heard all the evidence and

concluded [that the detention] in the circumstances herein was unjustified. It is not an error of law but an alleged error

of factual analysis that is presented by the prosecution to this court. Thus on the principles enunciated above, I cannot

intervene even if I were to disagree with the District Judge. The court has a limited jurisdiction only to correct errors of

law."

9. Accordingly, the learned trial judge concluded, having reviewed the authorities referred to above, that:

"In summary, the task of the High Court in an appeal such as that now before the court is a very limited one. This is

implicitly recognised in the very succinct question put by the learned District Judge in the case stated in respect of each

of the three acquittals now before the court, namely “Was I correct in law to find the arrest of the accused unlawful?”

Thus, the position in relation to the scope of an appeal by way of case stated was identified from the authorities referred to above by

the learned trial judge.

10. The learned trial judge then considered the central issue in the case stated, namely whether the District Judge was correct in law

to find that the arrests of the Appellants were unlawful. He identified fourteen principles derived from the majority judgment of this

Court (Fennelly J.) in DPP (Moyles) v. Cullen [2014] IESC 7 which he viewed as being necessary to consider. It would be helpful to

refer to those principles as set out by the learned trial judge as follows:

"A. Use of Reasonable Force when making Arrest

(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).

B. Judgment of Gardaí as to Reasonable Force

(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). 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).

C. Application of Handcuffs

(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).

(5). The decision as whether (sic) 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).

(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).

(7). A realistic latitude is shown by the law to the Gardaí in this regard. (Fennelly J., para. 25).

(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).

D. Courts slow to review

(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).

(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.

E. General observations on lawful arrest and detention

(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).

(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).

(13). A detention originally lawful can become unlawful where a suspect is held in detention without justification.

(Fennelly J., para. 35).

(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."

11. Having regard to the principles thus identified, the learned trial judge considered that the District Judge was not correct to find

that the arrest of the accused was unlawful in each of the Appellants' cases. He concluded that the reasoning of the District Judge in

reaching his conclusion contravened one or more of the principles identifiable in the judgment of Fennelly J. in Cullen set out

previously. He then proceeded to identify in particular those principles which he found to have been contravened. Again it would be

useful to set out precisely the conclusions of the learned trial judge in this regard:

"40. Principle No. (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.

It appears to the court that in breach of the applicable law, as identified in Cullen, an insufficiently generous measure of

judgment was afforded by the learned District Judge to the arresting Gardaí in each of the appeals now presenting.

41. Principle No. (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.

Principle No. (7). A realistic latitude is shown by the law to the Gardaí in this regard.

It appears to the court that, in breach of applicable law, as identified in Cullen, insufficient latitude was afforded by the

learned District Judge to the arresting Gardaí in each of the appeals now presenting.

42. Principle No. (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.

The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and

28th May, 2014, in the three appeals presenting) suggests to the court that in breach of applicable law, as identified in

Cullen, the learned District Judge had insufficient regard to the uncommonness of the situations in which handcuffing will

in practice be found to be unlawful.

43. Principle No. (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.

The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and

28th May, 2014, in the three appeals arising) suggests to the court that in breach of applicable law he had insufficient

regard to the slowness with which the courts will tend to review operational decisions of individual Gardaí.

12. For the reasons set out above the learned trial judge answered the question posed in the case stated as "No".

The judgment of the Court of Appeal

13. The Court of Appeal (Sheehan, Mahon and Edwards JJ.) in the judgment of Mahon J. delivered on the 21st December, 2016 first of

all considered the judgment of this Court in the case of Cullen. Insofar as the principles to be derived from that judgment were

identified by the learned trial judge, the Court of Appeal agreed with the principles so identified. Having pointed out that a judge of

the District Court is bound to follow and apply the jurisprudence of the Superior Courts unless the case is one which is distinguishable

from that jurisdiction, the Court of Appeal went on to consider the nature of the case stated procedure. Reference was made in that

context to the decision in the case of DPP v. Nangle [1984] ILRM 171, Rahill v. Brady [1971] I.R. 69 and Fitzgerald v. DPP [2003] 3

I.R. 247. The Court of Appeal concluded that the case stated procedure was appropriate as "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 Court judge's decision amenable to review by the Superior Courts on a point of law".

14. The Court of Appeal then took the view that the learned District Judge had erred in the application of the principles to be found in

Cullen. In para. 26 of the judgment Mahon J. stated:

"26. Therefore when the District judge came to assess the appropriateness or otherwise of the use of handcuffs in the

three cases before him he was required to apply a test of primarily subjective rather than objective reasonableness. He

was not concerned with whether the man on the Luas would consider that the use of handcuffs was necessary. Rather

he needed to be satisfied in each instance that the arresting Garda had made a genuine, albeit subjective, assessment as

to what the exigencies of the situation required, and had acted on the basis of that assessment and not on foot of some

blanket policy to use handcuffs. If he was satisfied that the Garda had arrived at a judgment in good faith that the use of

handcuffs was required, then it mattered not whether the judgment arrived at was objectively reasonable. The enquiry

mandated by Cullen is limited to an assessment of whether the garda officers acted with subjective reasonableness and

not on the basis of a blanket policy as had in fact occurred in that case. Of course, the presence or absence of

objectively reasonable grounds is a matter that can be taken into account in assessing the genuineness of a Garda’s

belief. However, that was not the learned District Judge’s approach.

27. In each of these cases the learned District Judge applied a test of objective reasonableness in assessing the

appropriateness of the decisions made by the relevant gardaí. He did not find that the reasoning of the three gardaí to

use handcuffs was based on any untruths, or that it was exaggerated, or that it was subjectively unreasonable.

Moreover, he did not find in any instance that the gardaí did not genuinely believe that the exigencies of the situation

required the use of handcuffs."

15. Mahon J. then examined the facts as found by the learned District Judge in each of the cases. Mahon J. went on to say in para.

32 as follows:

"The fact that a judge might take the view that the garda is being unduly cautious is irrelevant. In a particular case it

would, of course, be open to a judge to decide that the reasons provided by the arresting officer to justify the use of

handcuffs are not based on fact or are incorrect or implausible for one reason or another, and on that basis reject them.

For example a decision by an arresting garda to place handcuffs on a suspected drink driver because of his concern that

the person might run onto a busy road and endanger both himself and road users might be undermined if the road in

question was a quiet country boreen."

In each case, it was noted by Mahon J. that the learned District Court Judge made no finding that the Gardaí concerned in each case

did not genuinely hold the belief that the use of handcuffs was necessary in the circumstances as each individual member of the

Gardaí perceived them to be. The Court of Appeal therefore concluded that:

". . . the learned 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. I am satisfied that he did not do so."

16. In those circumstances, the Court of Appeal agreed with the decision of the High Court in answering "No" to the question posed

by the learned District Judge.

Submissions and discussion

17. Two elements arise for consideration on this appeal. The first element concerns the scope and principles applicable to an appeal

by way of case stated as provided for in s. 2 of the Summary Jurisdiction Act, 1857, as amended. The second element concerns the

correct application of the law in relation to the use of handcuffs as decided in the Cullen case.

18. It would be appropriate to consider the first of these elements at this stage. The Appellants in their submissions examined in detail

the findings of the learned trial judge and the decision of the Court of Appeal. In essence, as can be seen from those judgments, both

Courts considered the decision in Cullen, examined the principles to be derived from that decision and concluded that the learned

District Court Judge erred in law in the application of those principles to the facts of the case. Counsel on behalf of the Appellants

pointed out that the findings of fact made by a District Court Judge are not amenable to an appeal by way of case stated where

those findings were open to be made by the District Court Judge. It is argued that both the Court of Appeal and the High Court erred

in determining that the fact that a "question of law" was posed by the District Court Judge meant that s. 2 of the Act of 1857 was

appropriately engaged. It is contended that the learned High Court Judge fell into error by failing to establish how the District Court

Judge fell into error and complaint is then made that the learned High Court Judge reassessed the facts by concluding that the

District Court Judge afforded "an insufficiently generous measure of judgment" to the arresting Gardaí, failed to afford a "realistic

latitude" to the respective Gardaí and "had insufficient regard to the slowness with which the courts will tend to review operational

decisions of individual Gardaí". On that basis, it is argued that this was not an appropriate use of the s. 2 case stated procedure in

that it amounted to an impermissible reassessment of the material facts as found in the respective cases stated and further still, it

amounted to a failure to identify how the actions of the District Court Judge constituted or amounted to an error in law.

19. The submissions on behalf of the Appellants then considered the authorities in respect of the jurisdiction in relation to cases

stated. Reference was made to Clune v. DPP referred to previously, Fitzgerald v. DPP and DPP v. Nangle. Reference was also made to

DPP v. Noonan, Proes v. Revenue Commissioners and finally DPP (Lavelle) v. McCrea. Relying on those authorities, it was submitted

that the determination of the Court of Appeal that the fact-finding process undertaken by the District Court Judge was subject to

review, constituted an impermissible extension of the appeal by way of case stated procedure.

20. The respondents in their submissions referred to a number of the authorities relied on by the Appellants including DPP v. Nangle,

The State (Turley) v. O'Floinn [1968] I.R. 245 and Fitzgerald v. DPP referred to previously. It was pointed out that this was a case in

which no ruling was made on the merits of the case because the District Court Judge ruled that the arrests were unlawful and

therefore the evidential certificate which was obtained following the arrests was inadmissible. It was noted that the Appellants in

their own written submissions had submitted that the District Court Judge in this case had "correctly applied the principles identified in

Cullen". On that basis it was contended that this, of itself, illustrated the fact that what was at issue in these proceedings was a

question of law and not a question of fact. The facts were not in dispute, rather what was in dispute was the application of the law

to those facts. Accordingly, it was submitted on behalf of the respondent that the cases stated raised questions of law which were

correctly answered by the High Court and the Court of Appeal.

21. In truth there is little difference between the parties in relation to the operation of the case stated procedure. The authorities

cited by the parties highlight the limited scope of an appeal by way of case stated. Section 2 provides a procedure whereby a District

Court Judge can request a Superior Court to give an opinion on a point of law arising from the decision of the District Court Judge.

The procedure requires the District Court Judge to set out for the benefit of the High Court the relevant findings of facts and the

grounds for the determination giving rise to the question of law upon which the opinion of the High Court is sought.

22. By way of example one can look at the format of the case stated in the case of one of the Appellants, Mr. Gannon. The case

stated in that case commenced with an introduction setting out the nature of the charge before the Court. The charge sheet was

appended to the case stated. Reference was then made to the evidence proved or admitted before the District Court Judge. Included

in that was the following paragraph:

"Under cross-examination, Garda Kenny stated that the accused was handcuffed on arrest. He stated that he makes an

assessment every time he arrests someone and that the accused was handcuffed for his own safety, the safety of Garda

Kenny and for the safety of other road users because they were standing on the side of the M50, a very busy motorway

with a lot of traffic, and if the accused decided that he didn't want to get into the back of the car, the Gardaí would be

struggling with a man on the side of a very busy motorway and there could have been a major incident. Garda Kenny

accepted that the accused had been compliant and agreed that the accused was showing exemplary behaviour up to

that point. Garda Kenny also accepted that the handcuffing was precautionary in nature. Garda Kenny accepted that the

handcuffs were placed on the accused on a 'if he decided' basis rather than any indication of non-compliance."

23. Reference was then made in the case stated to the submissions made on behalf of the parties. At the heart of the submissions

was the applicability and scope of the decision in Cullen. Thereafter it was indicated that "having carefully considered the submissions

of the parties I held that the handcuffing was not justified as a precautionary measure and I dismissed the case on the basis of the

decision in DPP v. Cullen". It was in that context that the DPP was dissatisfied with that ruling and that the opinion of the High Court

was sought as to whether or not the view of the District Court Judge in relation to the application of Cullen was correct.

24. There is no doubt that the role of the High Court on an appeal by way of case stated is limited to giving an opinion on the point of

law raised in the particular case. The point at issue may involve a mixed question of law and fact but nevertheless it is only in relation

to a point of law that the Court has jurisdiction to give an opinion and the procedure provided for by s. 2 of the Act of 1857 is not a

procedure that gives the High Court an overriding jurisdiction to supervise the judicial function of a District Court Judge. As was

pointed out by Finlay P. in the case of DPP v. Nangle:

"I am satisfied, however, that it would constitute an unwarranted interference by me in a proceeding which is exclusively

confined to correcting errors of law by an inferior court in the determination of proceedings before it, to hold that

evidence so summarised could not have raised a doubt in the mind of the District Justice. He had the opportunity of

hearing the witnesses in this case and of listening to their answers to questions both in direct and cross-examination

dealing no doubt in significant detail with the incidents which occurred. "

Thus in the context of that case, the appeal by way of case stated was dismissed. In that case the DPP had sought to argue that

the respondent's evidence in the case was so incredible that it was a perverse decision in law for the District Court Judge to allow it

to raise a doubt in his mind. Nevertheless it had been conceded in that case that where a District Judge reaches a determination

which is unsupported by the evidence before him the decision whether to acquit or convict could be set aside on appeal by way of

case stated.

25. The latter was a point which was reiterated by Hardiman J. in the case of DPP (Lavelle) v. McCrea [2010] IESC 60 in which

Hardiman J. commented:

"There is no need, in my opinion, for this Court to scrutinise that finding, or any other finding of the learned District Judge

other than to enquire whether these findings were such as were open to her on the evidence. . . In conformity with the

long standing practice of the Superior Courts, it is unnecessary, and would be wrong, to speculate what the result might

have been had the facts been slightly different in one way or another and we do not do so."

Relying on those authorities it was contended on behalf of the Appellants that a determination on the justification for the use of

handcuffs was for the District Court Judge to determine alone.

26. It must be borne in mind that the scope of an appeal by way of case stated is of a limited nature and that the jurisdiction to

entertain an appeal by way of case stated must be strictly construed as was pointed out by Hardiman J. in Fitzgerald v DPP at p.365

of his judgment. At the heart of the appeal by way of case stated in this case is the decision of this Court in Cullen. What is at issue

is whether or not the District Court Judge correctly applied the principles to be found in that case to the facts of these cases. That is

undoubtedly a question of law and as such is one which is appropriate to an appeal by way of case stated. One cannot give such an

opinion without reviewing the facts of each case in order to determine if the learned District Judge applied the principles in Cullen

correctly. Reviewing the facts is not the same as coming to a different finding of fact on the evidence before the court. That is not

what happened in the High Court or, indeed, the Court of Appeal. Thus, insofar as it has been contended that the appeal by way of

case stated in this case is an impermissible review of the findings of fact made by the learned District Judge and not one that comes

within the scope of the case stated procedure, I reject that contention and am satisfied that this case is one which comes within the

jurisdiction provided for in the Act of 1857 as amended.

The decision in Cullen

27. It would now be appropriate to consider in some more detail the decision in the Cullen case which is at the heart of the point of

law raised in this appeal. It is relevant to note that none of the parties to this appeal have suggested that the decision in Cullen was

wrongly decided.

28. Cullen was a case in which a person arrested on suspicion of drunk driving was handcuffed. A consultative case stated came

before this Court after Mr. Cullen had been convicted in the District Court and had appealed his conviction to the Circuit Court. The

essential facts are set out in the case stated and are as follows:

"On cross-examination, Sergeant Moyles stated that Peter Cullen had cooperated with the Gardaí at all times during the

interaction with Mr. Cullen and the Gardaí prior to and subsequent to his arrest. Sergeant Moyles further accepted that

Peter Cullen had not used or threatened force in order to avoid arrest, nor had Sergeant Moyles formed the opinion that

there was anything in the conduct of the accused which might lead him to suspect that the accused might resist arrest

unless restrained. . . . Sergeant Moyles stated that it was his policy to place any person arrested for an offence under s.

49 of the Road Traffic Act 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."

29. The Circuit Court Judge having heard submissions stated:

"I decided that as a matter of fact the prosecution had failed to prove that the placing of the accused in handcuffs was

neither lawful, proportional nor justified and consequently that Sergeant Moyles in placing handcuffs on the accused had

acted unlawfully."

30. In the course of submissions counsel on behalf of Mr. Cullen argued that the action of restraining an individual by the use of

handcuffs constitutes the "use of force". It was further submitted that the policy and practice of the Gardaí in employing and

restraint by handcuffs failed to take account of Mr. Cullen's constitutional right to avoid the deprivation of his liberty, save in due

course of law, his right to bodily integrity and his right to avoid being the object of unnecessary force, restraint or humiliation in the

course of arrest. By contrast counsel on behalf of the DPP submitted that, on the evidence, the handcuffs were placed on Mr. Cullen

only after his arrest and that the alleged act of wrongdoing could not therefore affect the validity of the initial arrest. It was further

submitted that handcuffing was an ancillary part of but not an ingredient of a valid arrest.

31. The first task undertaken by Fennelly J. in the course of his judgment in that case was to identify clearly the facts as found and

in particular whether the application of handcuffs was an integral part of the arrest or merely something which took place afterwards

and secondly, whether the Sergeant, in his evidence, stated that he adopted a general and unvarying practice of handcuffing all

suspects arrested in drink driving cases. Having considered the wording of the case stated, Fennelly J. concluded that on the facts of

the case, the Court was dealing with the application of handcuffs as an integral and, in the view of Sergeant Moyles, a necessary

part of the arrest process. Secondly, it was concluded that "There seems to be no room for doubt but that the Sergeant was of the

opinion that the application of handcuffs was necessary 'irrespective of the circumstances'." Accordingly, Fennelly J. observed at

para. 17 of the judgment that what was involved was a general policy applied by a particular officer of An Garda Síochána without

exception to every person arrested on suspicion of driving under the influence, even where that person was entirely peaceful,

cooperative, unresisting and willing to travel voluntarily to the Garda Station. Having then clearly established the facts as discernible

from the consultative case stated, Fennelly J. then considered the use of force in effecting arrest. He referred to the fact that there

was no modern Irish authority in relation to the appropriateness of the use of handcuffs. He cited one nineteenth century case, Leigh

v. Cole (1853) 6 Cox CC 329 and a number of modern authorities from the United Kingdom including Simpson v. Chief Constable of

South Yorkshire Police [1991] 135 SJ 383, and Hunter v. Chief Constable of West Midlands Police [1982] AC 529. He referred to

passages from Blackstone's Criminal Practice 2011 and to Archbold 2010 the latter of which includes the following statement:

"The use of excessive force does not per se render an arrest unlawful, although it might be the basis for some other

remedies" (p. 2035).

32. Having examined those authorities, Fennelly J. concluded at paras. 26 and 27 as follows:

"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 which they confront in the course of their duty.

It may be, therefore, that the use of handcuffs is justified, in the particular circumstances, in order to prevent the

arrested person from fleeing or otherwise causing disturbance. In the present case, the decision as to whether to apply

handcuffs was pre-ordained. It did not depend on any evaluation of the circumstances. It left no room for the case of the

entirely peaceful and cooperative suspect."

33. It will be readily apparent that a number of the principles identified by the learned trial judge emanate from the passage just

referred to.

34. Fennelly J. then proceeded to consider the effect of an unlawful arrest. Having reviewed a number of authorities including DPP v.

Gaffney [1987] I.R. 173 and Director of Public Prosecution v. McCreesh [1992] 2 I.R. 239, DPP v. Finn [2003] 1 I.R. 372, DPP (Kelly) v.

Fox [2008] 4 I.R. 811 amongst others he concluded as follows:

"The present case, of course, does not involve trespass. To that extent, it is different from DPP v. Gaffney [1987] I.R.

173 and Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239. However, I believe that the principle established in

those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge

applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but

because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the

influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any

consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is

unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I

emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence

suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are

automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of

which the present would appear to be one, be applied when it is quite unnecessary to do so. . . .

In my opinion, an arrest carried out in what one hopes are the unique circumstances outlined in the case stated is

unlawful. I would answer the first question in the Case Stated in the affirmative. I would answer the second question by

stating that the arrest was unlawful. That is sufficient to determine the case."

35. There was also a judgment delivered in that case by Clarke J. (as he then was). In his judgment there was a large measure of

agreement with the analysis of Fennelly J. but he differed in his conclusion. He stated at para. 66 of his judgment:

"There was nothing to stop a lawful arrest taking place. The requisite opinion had been formed by the arresting sergeant.

It was the manner of arrest rather than the fact of arrest which was unlawful. In my view the position adopted in the

United Kingdom correctly analyses the consequences which arise in such a situation. The arrest is lawful. The manner of

arrest is not lawful. The remedy for the suspect is that appropriate to the unlawfulness of the manner of his arrest (such

as damages for assault) rather than for the arrest itself (which occurred in circumstances where the arresting sergeant

had a perfect entitlement to arrest) to be found to be unlawful."

Thus he concluded that while the placing of handcuffs on Mr. Cullen was unlawful it affected the manner of his arrest rather than the

entitlement to arrest him and therefore did not affect the lawfulness of his arrest or his custody thereafter.

36. It is not necessary for the purpose of this judgment to consider the issues that led to the dissenting judgment in that case. It is

sufficient to note that as mentioned previously neither counsel for the Appellants nor counsel for the DPP took issue with the majority

judgment in that case.

The application of Cullen to the facts of this case

37. It is contended on behalf of the Appellants that the Court of Appeal erred in the manner in which it applied the Cullen decision to

the facts of the respective cases stated and that it further erred in assessing the approach of the District Court Judge in the trial

court. This submission is based on a contention that the Court of Appeal erred in determining that the appropriate test as to the

justifiable use of handcuffs was "primarily subjective rather than objective reasonableness" (see Mahon J. at para. 26 of the judgment

of the Court of Appeal). It is further contended that the Court of Appeal was in error insofar as it held that the use of handcuffs

would be lawful so long as the trial judge was satisfied that the arresting garda had made a genuine, albeit subjective, assessment as

to what the exigencies of the situation required and had acted on such assessment rather than on foot of a blanket policy to use

handcuffs.

38. It was further contended that the learned High Court Judge erred by making an unsupported assertion to the effect that the

District Court Judge was misapplying the law by virtue of regularly finding no objective justification arose for the use of handcuffs.

The learned trial judge in para. 43 of his judgment made the following comment:

"The regularity with which the learned District Judge found handcuffing to be unlawful (on 3rd March, 20th March, and

28th May, 2014, in the three appeals presenting) suggests to the court that in breach of applicable law, as identified in

Cullen, the learned District judge he had insufficient regard to the uncommonness of the situations in which handcuffing

will in practice be found to be unlawful."

Complaint is made by the Appellants that this assertion is unsupported by any basis in fact or by regard to any empirical data. In

fairness to the Appellants, there is validity in this point. There was no evidence before the learned High Court Judge as to the rate or

regularity with which the learned District Judge found handcuffing to be unlawful. The fact that in these three cases, he made such a

finding, is not evidence one way or another as to the "regularity" with which the learned District Judge found handcuffing to be

unlawful. Equally, it might be observed that there is no evidence before this Court as to the number of cases before the learned

District Judge in any given period in which this issue could have or would have arisen. Thus whilst complaint has been made by the

Appellants as to the observation as to regularity by the learned trial judge, equally one might observe that there is no evidence

before this Court on the issue. The attempt by the Appellants in their submissions to provide a calculation as to the number of cases

heard by the learned District Judge in a given period and to extrapolate from that the fact that he did not do so with any regularity is

equally an assertion made in circumstances where there is no evidence of that kind available to this Court. Nothing further needs to

be said in relation to this point which does not affect the substantive issue raised in the case stated.

39. The central point made on behalf of the Appellants is that while it is clear that the trial judge will afford an arresting officer a wide

margin of appreciation and will have regard to the motivation of the officer in effecting a forceful arrest, the trial judge is entitled

nonetheless to conclude that Gardaí must only use such force as is reasonable in the circumstances and it is therefore for the trial

judge to decide whether in the circumstances of any given case the force used was in fact reasonable or necessary. If in the view of

the trial judge the force used was not reasonable then the force used was "quite unnecessary" and in those circumstances the trial

judge would be entitled to form the view that an arrest was unlawful. In making that submission, the Appellants relied on two

particular passages from the judgment of Fennelly J. where he stated "to place handcuffs on suspects who are being arrested without

giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested" was

unlawful. He went on to say at p. 45 of the judgment:

"It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the

circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case,

the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons

are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of

which the present would appear to be one, be applied when it is quite unnecessary to do so."

40. The DPP in her submissions submitted that in Cullen, Fennelly J. made the point that Gardaí will be given a generous measure of

judgment when deciding whether or not to handcuff an arrested person. The point was made that in these three cases the District

Court Judge, far from affording the arresting members a generous measure of judgment as to whether or not to make use of handcuffs

in carrying out the arrest, concluded that handcuffing was not justified if applied as a precautionary measure. It was further pointed

out that the approach of the District Judge did not reflect the fact that as Fennelly J. stated when referring to the judgment to be

exercised by the Gardaí that "An error of judgement by an officer in applying force which he genuinely believes to be necessary will

not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil". (see para. 17 of the judgment of

Fennelly J.). It was emphasised on behalf of the DPP that there was no finding by the District Judge to the effect that the Gardaí in

question did not have a genuine belief as to the necessity to make use of handcuffs. Accordingly it was contended that this was a

clear error of law in applying the decision in Cullen to the facts of these cases.

Decision

41. The Court of Appeal in its judgment agreed with the High Court Judge in relation to the principles identified by him from the

judgment of this Court in Cullen. (See para. 19 of the judgment of the Court of Appeal).

42. I find no reason to disagree with the identification of the relevant principles to be found in the Cullen decision. Insofar as I have

accepted that the learned trial judge fell into error when he expressed a view as to the regularity with which the learned District

Judge found handcuffing to be unlawful, that error does not in any shape or form vitiate his judgment in this regard.

43. At this point it would be worth considering briefly the general provisions in relation to the use of force when effecting an arrest.

Walsh on Criminal Procedure (2nd Ed.) states at para. 4-117 as follows:

"At common law, a member of the Garda Síochána, and any citizen, can use such force as is reasonably necessary to

effect or maintain a lawful arrest or to prevent crime. It will be seen later that the use of force for such purposes is now

the subject of statutory provisions. It is not clear, however, whether the statutory provisions should be interpreted as a

complete statement of the lawful use of force in this context or only as a limited defence to a criminal charge arising from

the use of force in order to effect an arrest or to prevent crime or in self defence. Equally, it is not clear whether the

provisions are confined to the use of non-lethal force or extend to the use of lethal force. From one perspective the

answers to these questions are of some importance, as the statutory provisions specifically abolish the common law rules

governing the use of force within the meaning and scope of the statutory provisions. On the other hand it would appear

that the statutory provisions do not affect any substantive change to the common law principles that is currently

interpreted and applied by the courts."

44. Walsh went on to consider handcuffing in the course of an arrest and in that context referred to the decision of Fennelly J. in the

Cullen case. The key point to be noted is that force, if used, can only be such force as is reasonably necessary to effect or maintain

a lawful arrest. One must consider the context to determine the question of what is reasonable. In this respect, Fennelly J. made it

crystal clear that the decision in relation to the application of handcuffs is one that must be left to the judgment of the individual

garda bearing in mind the circumstances of the case. As was pointed out by Fennelly J., the law in this regard has to be and is

realistic. A member of the Gardaí arresting a person on suspicion of drunk driving will have to make an assessment of the situation and

circumstances in a very short period of time. Matters to be considered will include, as has previously been described, (i) the nature of

the offence, in this case suspicion of drunk driving, (ii) the prevailing circumstances and (iii) the behaviour, character, demeanour and

personality of the individual about to be handcuffed. In each of the three cases here, evidence had been given as to the

circumstances preceding the arrest and the use of handcuffs. In the case of Mr. Pires matters taken into consideration included the

location where the arrest took place, the fact that Mr. Pires was bigger than the garda concerned and that both were on their own

and the risks involved if Mr. Pires became difficult while being transported. Similar considerations arose in relation to the other

Appellants. The facts have previously been referred to and it is not necessary to reiterate them at this point. In none of the cases

concerned was there any suggestion that the evidence of the Gardaí was not accepted by the District Judge.

45. It is informative to examine the cases stated individually and to look at what was stated by the District Judge. Thus in the case

of Gannon, the District Judge recorded his decision as follows:

"Having carefully considered the submissions of the parties I held that the handcuffing was not justified as a

precautionary measure and I dismissed the case on the basis of the decision in DPP v. Cullen."

46. In the case of Corrigan the relevant parts of the decision appear as follows:

"Having carefully considered the evidence in the case, the submissions of the parties and the judgment in the case of DPP

v. Cullen [2014] IESC 7, I agreed with the submissions made on behalf of the accused.

I found that although Garda Murphy made a bona fide decision and not as part of a policy to handcuff the accused, his

decision was not objectively justified by the reasons given in evidence for the handcuffing.

I found as a fact that the arrest of the accused was unlawful because the use of the handcuffs was not objectively

justified."

47. Finally in the case of Mr. Pires, the District judge gave his decision as follows:

"Having carefully considered the evidence in the case, the submissions of the parties and the judgment in the case of DPP

v. Cullen [2014] IESC 7, I agreed with the submissions made on behalf of the accused.

I found as a fact that the behaviour of the accused in his interaction with Garda Brady prior to being handcuffed and the

reasons for handcuffing as given in evidence by Garda Brady and set out in paragraph 6 above, did not show any

indication that the application of handcuffs was objectively justified.

I found as a fact that the arrest of the accused was unlawful because the use of handcuffs was not objectively justified."

48. The learned District Judge was clearly of the view that the use of handcuffs had to be objectively justified. I can find no basis in

the judgment of Fennelly J. in the Cullen case for a test that the use of handcuffs must be objectively justified. It is clear from the

cases stated in each case that the submissions made to the District Judge and accepted by him were to the effect that the

appropriate test was that there should be an objective basis for the application of handcuffs on the facts of the individual case. That

seems to me to fly in the face of the principles made clear by Fennelly J. in the course of his judgment. I would reiterate what he

said, namely, 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. He went on to point out that

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

He added that courts were 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. He emphasised that in carrying out an arrest, the Gardaí could only use such force as was

reasonable in the circumstances and went on to emphasise that it was the police officer who must make that judgment. I would add

that in considering the evidence as to the use of handcuffs in the course of an arrest, courts should avoid the use of hindsight to

come to a view that the individual member of the Gardaí concerned should have taken a different course. One has to allow a measure

of latitude to the Gardaí.

49. It is clear from the judgment of Fennelly J. that considerable scope or, as it has been put, a generous margin of appreciation will

be afforded to a member of the Gardaí in considering what is or is not reasonable in the circumstances of any given case. In the Court

of Appeal judgment Mahon J. at para. 32 observed as follows:

"Cullen requires that the decision of the garda to use handcuffs when making an arrest in a drink driving case ought to be

made on the basis of his, the officer’s, perspective as to the risks that might arise if handcuffs were not used. In Cullen

Fennelly J. stated that “it is the police officer who must make that judgment”. The fact that a judge might take the view

that the garda is being unduly cautious is irrelevant. In a particular case it would, of course, be open to a judge to decide

that the reasons provided by the arresting officer to justify the use of handcuffs are not based on fact or are incorrect or

implausible for one reason or another, and on that basis reject them. For example a decision by an arresting garda to

place handcuffs on a suspected drink driver because of his concern that the person might run onto a busy road and

endanger both himself and road users might be undermined if the road in question was a quiet country boreen."

Mahon J. went on to note that there was no finding in respect of any of the Gardaí that the belief held by the individual Gardaí in

relation to the use of handcuffs was not genuinely held.

50. It seems to me that in considering the cases concerned, the District Judge applied an objective test to the circumstances in each

case in which handcuffs were applied without having regard to the individual judgment of the Gardaí concerned. In practical terms,

each of the Gardaí had given evidence as to the circumstances in which they believed it was necessary to make use of handcuffs.

There is no suggestion whatsoever that the learned District Judge did not believe the evidence of the Gardaí concerned. Rather, it

appears that the District Judge applied an objective test to a consideration of whether handcuffs were appropriate to be used in the

circumstances and, having done so, rejected the judgment exercised by each of the members of the Gardaí concerned. As Barrett J.

reiterated in his judgment, the Gardaí are afforded a generous measure of judgment in this context and realistic latitude must be

shown to the arresting garda. It was also reiterated that the courts are in general slow to review the operational decisions of

individual Gardaí made in the wide range of situations which they confront in the course of their duty. It does not appear to me that

the so-called generous measure of judgment or realistic latitude which should be shown to the Gardaí was afforded in these cases. In

practical terms the learned District Judge took an objective view and came to a conclusion that in the circumstances of the case it

was not appropriate to use handcuffs without affording any real measure of judgment or realistic latitude to the Gardai concerned.

Such an approach is not consistent with the principles identified by Fennelly J. in Cullen and reiterated by Barrett J. in the High Court.

Accordingly, it is my view that the Court of Appeal in its judgment in dismissing the appeals was correct in upholding the decision of

the High Court to answer the question posed by the District Judge "Was I correct in law to find the arrest of the accused unlawful?"

in the negative.

Conclusion

51. Two issues had to be considered in this case. The first concerned the scope of the case stated procedure. This procedure is

confined to determining issues of law. Insofar as there may be a review of the facts decided in the District Court, it is not for the

purpose of reaching a different conclusion as to the facts. Some cases stated will involve mixed questions of law and fact. This case

concerned a point of law, namely, whether the principles set out in the Cullen decision were correctly applied to the facts of the

respective cases Accordingly, the case stated procedure was appropriately invoked.

52. The second issue concerned the question as to whether the Cullen principles were appropriately applied to the respective cases.

For the reasons set out above, I am satisfied that the District Judge in applying an objective test to the consideration of the use of

handcuffs, misconstrued the decision of this Court in Cullen.

In the circumstances, I would dismiss the appeals.