Court rules man’s arrest for drink driving is unlawful

A majority Supreme Court has ruled a man’s arrest for drink driving was unlawful because he was unjustifiably handcuffed after arrest on foot of a Garda sergeant’s own routine policy.

The decision means a certificate showing the man had failed breath tests cannot be used as evidence and he must be acquitted.

A Circuit Court judge had asked the Supreme Court to rule if he was entitled to find the man’s handcuffing unjustified, where the arresting officer did not believe the man was likely to resist arrest, but was rather implementing his standard personal policy of handcuffing all drink driving suspects.

The Circuit Court judge also asked whether he had correctly found the handcuffing was a conscious and deliberate breach of the man’s constitutional rights rendering his arrest and detention unlawful and requiring exclusion of evidence obtained after arrest.

In separate judgments yesterday, Mr Justice Nial Fennelly and Mr Justice Frank Clarke agreed that the handcuffing was “pre- ordained”, involving no evaluation of the circumstances, and was unjustified.

Mr Justice Fennelly found that rendered the arrest unlawful. Mr Justice Adrian Hardiman agreed. Mr Justice Clarke disagreed the arrest was unlawful, resulting in a 2/1 ruling in favour of the man.

In his judgment, Mr Justice Fennelly said the power of arrest may only be exercised with the use of such force as is reasonable in the circumstances. It was for the arresting officer to make that judgement and the law was “realistic” in that regard, appreciating decisions on arrest are often made in circumstances of urgency, danger and violence.

It was unlawful to handcuff suspects who are being arrested without giving any consideration to the context and, particularly, behaviour and demeanour of the arrested person, he found. It was unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances.

An arrest carried out in what, the judge hoped, was the “unique” circumstances of this case, was unlawful, he ruled. He considered that finding sufficient to decide this case and there was no need to refer to breaches of constitutional rights or the exclusionary rule — whereby evidence is deemed inadmissible if improperly obtained. The manner of arrest rather than the fact of arrest was unlawful.