Unreasonable handcuffing during arrest renders the manner unlawful but does not invalidate the arrest itself.

THE SUPREME COURT

[Appeal No: 477/2009]

Hardiman J.

Fennelly J.

Clarke J.

In the Matter of s.16 of the Courts of Justice Act, 1947

Between/

The Director of Public Prosecutions (at the suit of Sergeant Sean Moyles)

Prosecutor

and

Peter Cullen

Defendant

Judgment of Mr. Justice Clarke delivered the 18th February, 2014.

1. Introduction

1.1 Does the use of unreasonable force in carrying out an arrest render the arrest unlawful for all purposes? That seems to me to be

the key question which arises on this case stated. The facts and the legal issues which arise are fully set out in the judgment of

Fennelly J. and it is unnecessary to repeat them here.

1.2 In summary, the defendant ("Mr. Cullen") was arrested on suspicion of drunk driving and immediately handcuffed in circumstances

where the arresting sergeant had a policy of handcuffing all such suspects irrespective of the circumstances but had also formed the

necessary opinion to enable an arrest under the provisions of the Road Traffic Acts. Mr. Cullen was subsequently subjected to an

evidential breath test under s.13(1)(a) of the Road Traffic Act, 1994 as amended. That breath test resulted in a reading of 71ml of

breath which is, of course, in excess of the permitted amount.

1.3 The issue which arose at his trial and which is the subject of the case stated now before this Court concerns the lawfulness of

the actions of the relevant sergeant in immediately handcuffing Mr. Cullen and the consequences (if same be unlawful) for the

charges brought against Mr. Cullen for drunk driving.

1.4 Before going on to consider the specific issues which arise in the case it should be noted that the question of the relevance of

the exclusionary rule (whereby evidence obtained in breach of constitutional rights is, save in wholly exceptional circumstances,

excluded) has the potential to arise. However, this Court was aware that a division of the Court consisting of seven judges had been

formed to hear a case in which the prosecutor ("the D.P.P.") will seek to invite this Court to revisit the jurisprudence on the

exclusionary rule which stems back to Director of Public Prosecutions v. Kenny [1990] 2 I.R. 110. Should it prove necessary, for the

purposes of the just resolution of this case, to consider the exclusionary rule, then it might well be necessary to postpone any final

decision on this case until after the issue had been considered authoritatively by that division.

1.5 I find myself unable to fully agree with all of the judgment of Fennelly J. in this case. However, my disagreement relates to one

point only and I should start, therefore, by setting out, in brief terms, those aspects of his judgment with which I am in full

agreement.

2. Some Points of Agreement

2.1 First, I am in agreement, for the reasons analysed by Fennelly J., with the view that the jurisprudence in respect of drunk driving

cases in this jurisdiction establishes that a lawful arrest is a prerequisite to the introduction at a trial of the sort of evidence of

alcohol concentration typically relied on. It should be emphasised that the evidential issues which arise in drunk driving cases are

typically not concerned with the exclusionary rule as such. Evidence obtained in contravention of an accused's constitutional rights is

excluded, on foot of the exclusionary rule, even though it would, ordinarily, be otherwise regarded as admissible evidence. A

statement of admission of an offence, for example, is admissible to prove the guilt of an accused, as an exception to the hearsay

rule, in accordance with the ordinary law of evidence. However, despite being ordinarily admissible evidence, such a statement may

be excluded if it is taken in circumstances where the constitutional rights of the accused have been breached.

2.2 On the other hand, evidence concerning alcohol concentration is not normally (or, in practise at all) established at the hearing of

a drunk driving case in a way which corresponds with the ordinary rules of evidence. In many cases, of course, forensic evidence

forms an important part of the prosecution case. However, in order to establish facts by forensic evidence in the ordinary way, a

series of witnesses frequently have to be called. For example, fingerprint evidence is normally established by calling a witness who

took fingerprints from a crime scene, a witness who can verify the fingerprints of the accused and expert testimony to suggest that

the respective fingerprints come from the same person. Further evidence may, in an appropriate case, be necessary to ensure that

there is no doubt but that the fingerprint examples on which the expert proffers an opinion are truly the same as those found at the

crime scene and those taken from the accused. In theory, there is no reason why, for example, evidence of the concentration of

alcohol in a driver's blood, urine or breath could not be given in the same way. Evidence establishing the relevant sample could be

given. Evidence demonstrating the custody of the sample between its being taken and it being tested in a laboratory could be added.

An expert from the laboratory could be called to give an expert view as to the relevant concentration. All of this would, of course, be

very cumbersome and make the prosecution of drunk driving cases very difficult. It was, for that reason, that, from the earliest times

when drunk driving was defined by reference to alcohol concentration, the relevant legislation provided for the use of a certificate to

prove such alcohol concentration. However, it is important to emphasise that such a certificate would not, in an ordinary case and in

the absence of enabling legislation, be evidence. It is only because the statutory regime permits such a certificate to be given as

evidence that it is admissible at all. Thus compliance with the statutory regime is in the nature of a condition precedent to the

admissibility of the evidence in the first place, for in the absence of such compliance, the certificate simply would not be evidence in

the ordinary way.

2.3 Thus the distinction between certificate evidence in a drunk driving case and the vast majority of other forensic evidence which

might be tendered at a criminal trial is that alcohol concentration evidence by certificate is not evidence at all unless the statutory

requirements have been met. Other forensic evidence will ordinarily be admissible although it might be excluded, under the

exclusionary rule, if it were obtained in circumstances which were in breach of the accused's constitutional rights. Such evidence

remains evidence but it is excluded for constitutional reasons. Evidence by certificate in alcohol concentration cases does not even

get to the point of being admissible evidence unless the statutory regime is complied with. Thus certificate evidence which arises in a

case where the relevant person is not, at the time of sampling, under lawful arrest is not, in fact, evidence in the first place because

it could only be evidence if the relevant sample was taken in accordance with the statute and, thus, on an occasion when the

accused was under lawful arrest. Such evidence, if deriving from an unlawful arrest, is not truly evidence in the first place rather than

evidence which is excluded. However, I will return to the question of whether the exclusionary rule has any relevance to this case.

2.4 Next, I fully agree with the analysis by Fennelly J. of the terms of the case stated and the findings of the trial judge in respect of

the policy of handcuffing which is at the heart of this case. It is true, as Fennelly J. points out, that a person who has a lawful power

to arrest must be afforded a reasonable margin of consideration in deciding whether, on the facts of an individual case, handcuffing is

necessary. However, that margin of consideration does not permit an arresting person to adopt a policy of handcuffing in all cases

irrespective of the circumstances of the individual case. There can be no doubt but that the sergeant in question in this case was not

entitled to adopt the policy which he did. It is equally clear from the facts set out in the case stated that the trial judge was more

than entitled to come to the view that there was no reasonable basis for the sergeant (even allowing for a significant margin of

consideration) to have concluded that handcuffing was necessary on the facts of this case. It follows that I am in agreement with

Fennelly J. as to the answer to the first question posed in the case stated. The trial judge was entitled to conclude that the placing

of handcuffs on Mr. Cullen was unjustified.

2.5 I also agree with the comments of Fennelly J., (by reference to the judgment of the Court of Criminal Appeal delivered by

Hardiman J. in People (at the suit of the Director of Public Prosecutions) v. Davis (unreported, Court of Criminal Appeal, 23rd October,

2000)) which stress the seriousness of inappropriate handcuffing. That a decision to handcuff without any reasonable justification on

the facts of the case in question is a significant and serious matter cannot be doubted. That there may be civil (or even criminal)

consequences for someone who acts unlawfully in that manner (even if a member of An Garda Síochána) also cannot be doubted. But

the question which requires to be analysed in this case is as to whether, amongst those consequences, is a requirement that

evidence which might otherwise be available to establish an offence or drunk driving is, by the fact of unjustified handcuffing alone,

necessarily to be rendered inadmissible with a resultant requirement for an acquittal.

2.6 It is then necessary to turn to the second question posed in the case stated. This question is expressed by the trial judge in

terms of the exclusionary rule. I also agree with Fennelly J. that, for the reasons set out in his judgment and briefly touched on earlier

in this judgment, the initial approach to the admissibility of alcohol concentration evidence by certificate does not depend on that

rule. Rather the first question concerning the admissibility of the evidence of alcohol concentration sought to be tendered against Mr.

Cullen depends on whether he was in lawful custody. On that basis it seems to me that it is important to analyse whether Mr. Cullen's

custody became unlawful because of the unjustified (and, indeed, unlawful) use of handcuffs.

2.7 That leads to one further point on which I agree with Fennelly J. For the reasons set out in his judgment it seems to me that the

proper characterisation of the terms of the case stated is to regard the handcuffing as having occurred as part of the process

whereby Mr. Cullen was arrested. I do not accept that it is possible to separate, on the facts of this case and in the light of the

contents of the case stated, the handcuffing from the arrest as a matter of fact. The real issue comes down, however, in my view,

to one of whether that analysis leads to a conclusion that Mr. Cullen was, at all material times thereafter, in unlawful custody such

that the certificate evidence sought to be tendered against him could not be considered to be evidence at all by virtue of a failure to

comply with the statutory regime. As pointed out earlier, that statutory regime confers the status of evidence on such certificates

but only when given in compliance with the statutory scheme which requires any relevant sample to be taken while the accused is in

lawful custody. I, therefore, turn to the question of lawful custody.

3. Was the Accused in Lawful Custody?

3.1 As noted by Fennelly J. counsel for the D.P.P. sought to place reliance on the position in the United Kingdom. While it is true, as

Fennelly J. points out, that only limited judicial authority was cited (Simpson v. The Chief Constable of South Yorkshire Police (Times

Law Reports 7th March, 1991) following Hunter v. The Chief Constable of West Midlands Police [1982] A.C. 529), nonetheless it

remains the case that the leading English text books describe the law by reference to those cases with Blackstone's Criminal Practice

(2011) stating that "It would seem that, where handcuffs are unjustifiably resorted to, their use will constitute a trespass even

though the arrest is lawful." (see p.1173) and the 2010 edition of Archbold stating that "The use of excessive force does not per se

render an arrest unlawful although it might be the basis for some other remedies." (see p.2035).

3.2 It is also true that, as Fennelly J. points out, the consequences of the finding in Simpson (beyond the fact that a claim for

damages for false imprisonment was dismissed) are nowhere analysed. However, it seems to me that the only realistic basis on which

the claim for wrongful imprisonment could have been lost was if, as Blackstone and Archbold specify, an arrest with undue force, while

undoubtedly unlawful and almost certainly constituting an assault, does not render an otherwise lawful arrest, unlawful. Whether that

reasoning is persuasive in this jurisdiction is the question to be addressed. However, it seems to me that it must be acknowledged

that, by treating excessive force as rendering an otherwise justified arrest unlawful, the courts in this jurisdiction would be taking a

different view from that adopted in the United Kingdom. For that reason, although the position in other common law countries was not

explored in argument, it seems to me to be appropriate to attempt to identify the position which the courts in other countries with

similar legal systems have taken on this issue.

3.3 In Canada, it is accepted that there exists a discretion in a trial court to either exclude evidence or place a stay on proceedings

where there has been a violation of the Charter rights of a suspect. However, a de minimus breach will not suffice for the court to

exercise its discretion. Rather, the courts seem to insist on there being a serious breach of a suspect’s rights under the Charter (R. v.

Regan, [2002] 1 S.C.R. 297; R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 68). An arrest using excessive force has been held to come

within this category, if the force used by the arresting officers is sufficiently egregious (R. v. Nasogaluak, 2010 SCC 6).

3.4 The Canadian cases involving excessive force in conducting an arrest seem to include behaviour of arresting officers which was of

a different degree to that in the instant case. In R v Kempthorne 2010 MBPC 36, the accused was charged with operation of a motor

vehicle while impaired due to alcohol consumption. The accused and his friend were arrested at gunpoint before any further

investigation occurred. The Provincial Court of Manitoba considered whether the evidence subsequently obtained should be excluded

due the arbitrary use of force in executing the arrest. At para. 58 of his judgment, Combs, P.J. stated that the court was required to

take three factors into account:

“1) the seriousness of the Charter infringing state conduct;

2) the impact of the breach on the Charter – protected interests of the accused;

3) society’s interest in the adjudication of the case on its merits.”

Balancing these three factors, Combs P.J. concluded at para. 64:

“I am satisfied in this case that the admission of the evidence of impairment and the breath test results would bring the

administration of justice into disrepute. The seriousness of the Charter breaches warrant exclusion and out weighs the

desire to have all reliable evidence before the court. The public would be concerned if evidence was admitted which was

obtained in the manner of this case.”

3.5 Similarly, in the recent Quebec case of R v X (A Young Person) 2012 QCCQ 14899 (3rd December 2012), a young person

attempted to run away after being approached by peace officers, it appears for loitering. This lead to a chase and when the young

person continually refused to comply with the officer’s requests to stop and lie down, the officer drew his gun and pointed it at the

accused. The accused then lay down and was handcuffed by another officer who arrived on the scene. It subsequently transpired

that the young person was in possession of a quantity of illegal drugs. At para. 84, the court commented that:

“…this completely aberrant and extreme police misconduct clearly exceeds a peace officer's power of arrest without a

warrant under the Criminal Code and the Code of Criminal Procedure … or the power of investigative detention.”

The Court placed a stay on the proceedings in light of the police misconduct. However, it should be noted that this case involved a

number of Charter violations, including unlawful detention and an unlawful search.

3.6 A similar approach appears to be evident in New Zealand where evidence obtained in breach of a suspect’s rights under the Bill of

Rights can be excluded where there is a sufficiently serious violation. In R. v Butcher [1992] 2 N.Z.L.R. 257, the majority of the Court

of Appeal, per Cooke P. stated:

“Prima facie ... a violation of rights should result in the ruling out of evidence obtained thereby. The prosecution should

bear the onus of satisfying the Court that there is good reason for admitting the evidence despite the violation.”

3.7 It is, therefore, fair to say that the use of excessive force in the Canadian and New Zealand jurisprudence seems to fall to be

judged by reference to the question of whether, if sufficiently serious, the breach of rights involved would necessarily lead to it being

appropriate for the courts to respond by excluding evidence obtained or staying proceedings. The position in those jurisdictions is,

therefore, one which takes an overview of the rights involved most specifically the rights of a suspect which might have been violated

and a societal interest in the proper prosecution of offences. The case law does not, in terms, address whether an otherwise lawful

arrest becomes unlawful by reason of the use of excessive force in the course of the arrest concerned.

3.8 On that basis there does not seem to be any significant authority from outside this jurisdiction which might suggest that the use

of excessive force renders an otherwise lawful arrest unlawful as opposed to the use of such force being, in itself, an unlawful act

which might expose the perpetrator to a claim for damages or, indeed, in an appropriate case, to criminal responsibility or which might

require the court to exclude evidence as a response to an established breach of rights. On that basis it is next necessary to turn to

the Irish authorities on which reliance was placed.

4. The Irish Authorities

4.1 There are a series of Irish cases commencing with Director of Public Prosecutions v. Gaffney [1987] I.R. 173, which concern an

arrest, in the context of drunk driving, which took place in the dwelling of the suspect. In Gaffney, Walsh J. found that the entry of

An Garda Síochána in the case in question onto the dwelling house property of the suspect was in breach of the constitutional

guarantee of inviolability of the dwelling contained in Art. 40 of Bunreacht na hEireann and that, thus, the arrest on foot of that

unconstitutional entry was illegal. A similar point arose in Director of Public Prosecutions v. McCreesh [1987] 2 I.R. 239, although that

case turned on whether there might be a distinction based on whether the arrest occurred in a driveway. This Court held that it did

not make any difference.

4.2 A different view was taken in Director of Public Prosecutions v. Forbes [1994] 2 I.R. 542, where it was held that the gardaí, on

the facts of that case, had an implied authority to enter private property. A somewhat different situation fell to be considered in

Director of Public Prosecutions v. Finn [2003] 1 I.R. 372 where the request to provide a sample was found to have taken place

outside of the timeframe specified in the statute. On that basis it was held that, as the statutory regime had not been complied with,

the results of the test could not be admitted in evidence.

4.3 These cases clearly establish, in my view, two propositions. First, they emphasise the point on which I have already expressed

agreement with Fennelly J. which is to the effect that, in order that a certificate of the concentration of alcohol be evidence, the

statutory regime (including a lawful arrest) must be complied with. Second, it is also clear from Gaffney and McCreesh that an arrest

carried out in or on the private dwelling of a suspect, without that suspect's permission to enter, is a breach of the suspect's

constitutional rights thus rendering the arrest unlawful. As a result of the first point made, any sample taken thereafter is taken in

breach of the statutory regime and a certificate resulting from such a sample cannot, therefore, be admitted in evidence.

4.4 However, it does not seem to me that those cases are of any assistance in answering the question which arises on this case

stated. The gardaí who entered onto the private dwelling of a suspect had no legal authority to be there. The arrest which they

affected in circumstances where they were, as the Court held, trespassers, was only capable of being affected unlawfully. There was

a direct causal connection between the unlawful activity of the gardaí in question (going onto the private home of the suspect) and

the arrest for the suspect could not have been arrested without that trespass taking place.

4.5 The situation here is, in my view different. 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.

4.6 I do not find any inconsistency between what appears to be the current position in the United Kingdom and that identified in the

decisions of the House of Lords in cases such as Morris v. Beardmore [1982] A.C. 446, which decision was discussed and significantly

relied on by both Walsh and Henchy JJ. in Gaffney. Morris v. Beardmore also concerned police officers who were found, on the facts,

to be trespassers at the time when the relevant arrest was affected. Thus, as in Gaffney, there were no means by which the arrest

could have been lawfully affected, in the circumstances pertaining, for the suspect could not have been arrested without that

trespass taking place. A different situation arises where a lawful arrest can take place but it is only the manner of that arrest which is

unlawful.

4.7 In those circumstances, I respectfully disagree with the final conclusion reached by Fennelly J. to the effect that the arrest in

this case was itself unlawful. However, the question remains as to whether, even though the arrest of the accused was lawful,

nonetheless the breach of rights which occurred in the course of the arrest are such as would require, whether under the

exclusionary rule as currently understood or any variation on same which this Court may come to decide on, that the relevant

certificate evidence might nonetheless be properly excluded. As indicated earlier in this judgment, given that, for those reasons, it

seems to me that this case turns on the exclusionary rule rather than on the specific basis on which, under statute, certificates of

alcohol concentration are admitted in drunk driving cases, I would prefer to postpone coming to a final view as to whether the

certificate evidence in this case could properly be excluded by the trial judge until after a panel of seven judges of this Court has had

an opportunity to consider the exclusionary rule itself. As the view which I have come to appears to be a minority view I would

confine myself to indicating my respectful disagreement with the majority view that this case can be disposed of by finding that Mr.

Cullen's custody after his arrest was unlawful.

5. Conclusions

5.1 For the reasons which I have sought to analyse, I would, therefore, answer the questions posed by the trial judge in the case

stated in this manner.

5.2 So far as the first question is concerned, I would hold that the trial judge was entitled to form the view that the placing of

handcuffs on Mr. Cullen was unjustified on the grounds that the relevant sergeant did not believe (and had no basis for believing) that

Mr. Cullen was likely to resist arrest or escape unless so constrained.

5.3 I would in part answer the second question posed by holding that the placing of handcuffs on Mr. Cullen, while unlawful, affected

the manner of his arrest rather than the entitlement to arrest him and, thus, did not affect the lawfulness of his arrest or his custody

thereafter. In my view a final answer to the question of whether the certificate of alcohol concentration in Mr. Cullen's case was

admissible would, therefore, depend on the view which this Court takes on the current status and extent of the exclusionary rule.