DPP v Cullen: Can a Garda lawfully place handcuffs on a suspected drink-driver who shows no sign of resisting arrest?

Handcuffed thiefThe Court held (here) that a Garda Sergeant had acted unlawfully in restraining an accused in handcuffs where the accused showed no signs of resisting arrest. Therefore, the evidence of intoxication gathered after the arrest is inadmissible in court.

Background

Cullen was driving a van in the area of Clonee village when Garda Sergeant Moyles became suspicious that he may have been under the influence of alcohol. Sergeant Moyles signalled Cullen to pull over; he spoke to Cullen and formed the opinion that he had consumed alcohol; and he asked Cullen to provide a breath specimen, which he provided and which indicated he may have had a blood alcohol level above the legally permitted level. Sergeant Moyles informed Cullen that he was arresting him on suspicion of drink-driving, cautioned him, placed him in handcuffs and brought him to Blanchardstown Garda Station. Cullen was polite and obliging during all of this.

 

Cullen later appeared before His Honour Judge O’Sullivan in the Dublin District Court charged under s 49(4) and 6(a) of the Road Traffic Act, as amended. Sergeant Moyles gave evidence that it was his policy to place any person he arrested for drink-driving in handcuffs, as such persons often become abusive and resist arrest. Counsel for Cullen argued that:

Sergeant Moyles had no reasonable grounds for believing that the accused would put up any show of resistance or would attempt to evade arrest unless restrained in handcuffs. Thus placing such restraints on the accused was both objectively and subjectively unjustified and constituted a conscious, deliberate and unlawful use of force such as to render the accused [sic] detention unlawful. He further submitted that the exclusionary rule obligated the trial Judge in cases of a conscious and deliberate breach of the accused constitutional rights to exclude the admissibility of evidence hereafter obtained …

 

Judgments

Fennelly J held that, although an arresting Garda should use only such force as is necessary, he or she is entitled to apply handcuffs to any arrested person when he or she genuinely believes it to be necessary, and that that decision should be left to the arresting Garda based on his or her assessment of all the circumstances. However, Sergeant Moyles did not perform such an assessment before deciding to place handcuffs on Cullen; he applied handcuffs on all suspects that he arrested under this offence. Fennelly J, on examination of the authorities determined that placing handcuffs on persons who showed no signs of resisting arrest is an unnecessary use of force, and is unlawful. Therefore, Sergeant Moyle’s arrest of Cullen was unlawful and that finding was sufficient to determine the case.

 

Hardiman J concurred.

 

Clarke J wrote a part dissenting opinion (here) explaining the statutory basis under which the courts allow the admission of evidence of intoxication, under certification; thereby relieving the need for expert evidence to establish proofs. A lawful arrest, though, is a necessary part of this statutory process. Therefore, if the arrest is unlawful, the evidence is inadmissible regardless of the exclusionary rule. However, he believed that it was the manner of the arrest that was unlawful, but the arrest was on lawful grounds. Therefore the evidence ought to be admissible.

 

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