THE COURT OF APPEAL
Neutral Citation Number: [2017] IECA 225
[2017/99]
Birmingham J.
Edwards J.
Hedigan J.
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA CAROLINE CLARK)
PROSECUTOR
APPELLANT
JUDGMENT of Mr. Justice Birmingham delivered on the 27th day of July 2017
1. On 4th July, 2016, Judge Mary Devins sitting at Ballina District Court stated a case for the opinion of the High Court. The case arose out of a prosecution for an offence contrary to s. 4(2)(a) and (5) of the Road Traffic Act 2010 (driving when the concentration of alcohol in the body exceeded a concentration of 50 mgs of alcohol per 100 mls of blood). The questions posed in the Case Stated were:
2. At first instance, Eagar J. answered the first question posed no and therefore concluded that the second question did not arise.
3. The matter now comes before this Court on appeal from the judgment and order of Eagar J.
4. The background facts as referred to in the case stated were that on 21st September, 2013, the prosecuting member of An Garda Síochána, Garda Caroline Clarke, attended at the scene of a road traffic accident at Tolan St., Ballina, Co. Mayo, arriving on the scene at 3.12 p.m. She spoke to the injured party, one Thomas Muldoon, who informed her that he had been driving in heavy traffic when he was rear-ended by the vehicle that was behind him. The prosecution case was that the accused, Mr. Geoffrey Laing, was the driver of the vehicle that rear-ended the vehicle in front. Garda Clarke’s evidence in the District Court was that when she spoke with Mr. Laing, she observed that his eyes were bleary, his speech was slurred and there was a strong smell of intoxicating liquor from him, and she formed the opinion that he had consumed intoxicating liquor. She performed a roadside breath test which Mr. Laing failed. Garda Clarke then formed the opinion that Mr. Laing was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle in a public place. She arrested him under s. 4(8) of the Road Traffic Act 2010, as amended, for an offence under s. 4(1), (2), (3) or (4) of the Act. She cautioned him and arrested him and brought him to Ballina Garda Station, arriving there at 3.45 p.m. On arrival, she introduced him to the Member in Charge, Garda Seán Haugh. In her presence the Member in Charge entered the prisoner’s details in the custody record and gave him a notice of his rights and informed him in relation to those rights in ordinary language. Garda Clarke then contacted Dr. Brunker, a registered medical practitioner at 3.55 p.m. to attend on the prisoner and he arrived at 4.45 p.m. She then made a requirement from the accused to permit the doctor to take from him a sample of blood. All the relevant requirements were complied with and the accused provided a sample of blood that was forwarded to the Medical Bureau of Road Safety. The accused was released from custody at 4.59 pm. Subsequently a certificate of analysis was received from the Medical Bureau of Road Safety which indicated that the reading was 253 mg of alcohol per 100 ml of breath, which is above the legal limit. In the course of the District Court proceedings the defence applied for a direction, which was refused by Judge Devins and the defence went into evidence. In doing so they called Garda Seán Haugh, the Member in Charge. He gave evidence that the accused was introduced to him by Garda Clarke as a suspect in relation to a drink driving offence. Garda Haugh said that he gave the prisoner his statement of rights, which were acknowledged and that he then placed the prisoner in a cell at 4.10 p.m. Garda Haugh confirmed that he had asked the accused to empty out his pockets and then placed him in the cell at 4.10 p.m. where he remained until the doctor arrived at 4.45 p.m. Garda Haugh indicated that he could not remember if he had asked the accused to remove his shoes before placing him in the cell but he confirmed that this would be normal practice to do so. Garda Haugh stated that he did not know what time the doctor was going to arrive at the station so it was necessary to place the accused in the cell so that he and Garda Clarke could continue in the performance of their duties while waiting for the doctor. Garda Haugh said that it was routine to detain a person in a cell while awaiting the arrival of a doctor to take a sample. He stated that if a prisoner was not placed in a cell that he would have to sit in the custody area with the prisoner until such time as the doctor arrived and that this would limit his ability to perform other duties including answering the phone or attending to members of the public at the hatch. It appears that at this stage of the proceedings Judge Devins expressed her view that if a person had never been in a cell before that it would be a traumatic experience to be placed in a cell. She referred to the Treatment of Persons in Custody Regulations and the requirement that the Gardaí should at all times respect the dignity of persons as human beings. Under cross examination Garda Haugh confirmed that he was the only Member in Charge at the garda station with responsibilities for prisoners. He was asked what the position would be if another prisoner came in, what he would do with that prisoner and he stated that he would process them and search them and place them in a cell. He stated that the reason for this was that any enquiries that needed to be carried out could be undertaken and so that he could proceed with his other duties such as attending the hatch and answering the phone. He said that there was a health and safety issue, particularly if there was one prisoner and one garda present. At that stage the solicitor for the defence, Mr. Denis Molloy, applied to have the charge dismissed, relying on the Supreme Court case of DPP v. Cullen [2014] 3 I.R. 30 and in particular on the judgment of Fennelly J. That was a case that dealt with placing prisoners in handcuffs. Mr. Molloy submitted that there was an analogy with Cullen in that there was no assessment made of any possible risk from his client before he was put in a cell. He argued that the arrest, which was originally lawful, became unlawful by virtue of the fact that his client was put in a cell essentially for the convenience of the gardaí. Inspector Declan Rock submitted that it was standard practice to detain persons in a garda station in a cell, and that was for the safety of prisoners and the safety of gardaí present. Judge Devins adjourned the matter, indicating that she was considering whether she ought to state a case to the High Court in view of the Supreme Court decision in Cullen. When matters resumed, the prosecuting inspector sought to distinguish Cullen. He submitted that if a person could be detained in a garda station for as long as was reasonably necessary to allow a sample be taken under the drink driving legislation, then it had to be accepted that the person was deprived of their liberty and was not free to go. He contended that placing a person in a cell did not lead to unreasonable force being applied to the person. It simply relates to the place where an accused is deprived of their liberty. He then went on to state that if an accused was in an uncontained area, then the accused could just walk out of the station. He further submitted that the gardaí had a duty to prevent escape and to prevent self harm. Having considered the submissions, Judge Devins proceeded to state a case seeking the opinion of the High Court on the questions that have already been referred to.
5. The core issue in the case centres on the decision to place the appellant in a cell to await the arrival of the doctor. Before the High Court and again before this Court, counsel on behalf of Mr. Laing submitted that it was unlawful to have locked him in a garda cell as a matter of routine or administrative convenience. There was an option to supervise the defendant in the custody area but that did not happen because it was not convenient for the Member in Charge who had other duties that he had to attend to. Counsel submitted that on the facts of the case where the drunk driving suspect presented no safety or security risk, that the placing in a cell amounted to an unjustified interference with the defendant’s personal rights. The appellant has placed reliance on two Supreme Court cases in particular. In the case of Cullen, the Supreme Court held that the handcuffing of drink driving suspects as 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 is entirely peaceful, co-operative, unresisting and willing to travel voluntarily to the garda station” rendered the arrest unlawful. Reliance is also placed on the case of Whelton v. O’Leary [2011] 4 IR 544 where the Supreme Court was required to consider the significance of an applicant being kept in a cell for a period of one hour and fifteen minutes owing to the breakdown of a printer used to generate a charge sheet. McKechnie J., in the course of a dissenting judgment commented:
“The charge sheet could easily have been printed prior to his arrest and one wonders why this was not done - convenience, I suspect, which in my view is unacceptable, as is the offered explanation regarding the printer. I note, in any event, that such explanations account for only 25 minutes of the period of detention. The balance, I have no doubt, resulted from routine practice, casually pursued, in a manner quite indifferent to the applicant's liberty. That is not sufficient. Therefore, the applicant was not, as the section demands, charged promptly or with urgency. Such a time frame exceeded the provisions of the statute and, consequently, the detention of the applicant was unlawful.
Finally, on this aspect of the case, I respectfully indorse the following passage of the judgment of the trial judge where he said, at p. 12:-
“For my part, I would deprecate any suggestion that persons should be placed in a cell as a matter of routine or, indeed, a matter of administrative convenience. If an individual represents no security risk then I can see no reason why it would be necessary to place him in a cell and why he could not be simply left to await developments in the public area of the station.”
I entirely agree with this observation. It would be an entirely unacceptable situation if a person’s liberty was denied purely by way of policy, or for convenience, when the purpose of his presence can be otherwise addressed.”
6. Fennelly J., who delivered the majority judgment, also dealt with this aspect. He did so at para. 11 in these terms:
“Detective Garda Murray explained in his affidavit that it is normal practice, when a person is rearrested for the purpose of being charged, that he or she is placed in a cell while the charge sheets are being printed. He said:-
“prisoners in custody are not allowed to roam freely around the station.”
Birmingham J. rightly deprecated any practice whereby persons should be placed in a cell as a matter of routine or as a matter of administrative convenience.”
7. As would be apparent from the quotation from the judgment of Fennelly J., I was the High Court judge who dealt with the case of Whelton v. O’Leary. It seems to me that the facts of the case are different to a significant extent. In Whelton v. O’Leary what was in issue was a re-arrest for the purpose of charging which was taking place by appointment. There was no obvious reason why charge sheets could not have been printed prior to the arrival of Mr. Whelton at the station. If that was not to happen there was no particular reason why Mr. Whelton could not have been invited to walk the block, to wait outside the station or to wait in the public area. There was no need for him to be in custody in advance of the charging. The situation here is different. Mr. Laing had been brought to the garda station in custody as a person who had been arrested. It was necessary that he should remain in custody in the station pending the arrival of a medical practitioner. In my view that the gardaí would regard it as appropriate and indeed necessary to place a detainee or prisoner in a cell is entirely understandable. In the circumstances I am in no doubt about the fact that Mr. Laing’s detention was lawful and so like the High Court judge, I would answer the first question posed in the negative and take the view that the second question does not arise.
