[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. McCormack [1999] IEHC 13; [1999] 4 IR 158; [2000] 1 ILRM 241 (8th July, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/13.html Cite as: [2000] 1 ILRM 241, [1999] 4 IR 158, [1999] IEHC 13

[New search] [Help]

D.P.P. v. McCormack [1999] IEHC 13; [1999] 4 IR 158; [2000] 1 ILRM 241 (8th July, 1999)

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED PURSUANT TO SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

BETWEEN

JUDGMENT of Mrs Justice McGuinness delivered the 8th day of July 1999

1. This is a Case Stated pursuant to Section 2 of the Summary Jurisdiction Act 1857 for the opinion of this Court by Judge William Harnett of the District Court. The case is stated at the request of the Director of Public Prosecutions and arose from a prosecution in the District Court at Callan, County Kilkenny, heard on the 10th day of December 1997 and the 14th day of January 1998. The accused, Michael McCormack, was charged with an offence under Section 49(2) of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic Act 1994 that he did on the 1st day of September 1997 at Clashacollaire, Callan, a public place in Court area and District aforesaid drive a mechanically propelled vehicle registered no 89 KK 1276 in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his blood exceeded a concentration of 80 milligrams of alcohol per 100 millilitres of blood.

2. The learned judge of the District Court sets out the relevant factors of the Case Stated as follows:

"At the hearing the following facts were approved or admitted before me:-

(I) Garda Helen Nugent of Callan Garda Station, a member of An Garda Siochana, was on duty on the morning of the 1st of September at approximately 12.45 a.m. at Clashacollaire, Callan, County Kilkenny. She stopped motor vehicle registration 89 KK 1276 and on speaking to the driver she noticed his speech was slurred and there was a strong smell of alcohol from his breath. The driver gave his name as Michael McCormack, Minnauns, Callan.

(II) Garda Nugent informed Mr McCormack that she was of the opinion that he had consumed intoxicating liquor and that she required him to provide a specimen of his breath pursuant to Section 12 of the Road Traffic Act, 1961/1995 and she informed him that a failure or a refusal to comply with such a required (requirement?) was an offence punishable on conviction by six months imprisonment and/or a[sterling]1,000 fine.

(III) The driver, who was the accused, agreed to provide a specimen of his breath and the test proved positive.

(IV) Garda Nugent formed the opinion that the accused was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.

(V) Garda Nugent arrested the accused. In her evidence she told the Court that the arrest was affected pursuant to Section 49(8) of the Road Traffic Act, 1961 for an offence contrary to Section 49(2) or (3) of that Act.

(VI) I found as a fact that Garda Nugent did not inform the accused that he was being arrested pursuant to Section 49(8) of the Road Traffic Act 1961, nor did she inform the accused that he was being arrested pursuant to any particular statutory provision, nor did she inform him whether in layman's language or otherwise of the fact that he was being arrested for an offence pursuant to the legislation concerning the consumption of the intoxicants, nor did she inform him that he was being arrested.

(VII) The arrest took place at 12.50 a.m. on the 1st September 1997. The accused was then brought by Garda Nugent and Sergeant Treacy to Kilkenny Garda Station arriving there at 1.10 a.m.

(VIII) Garda Michael Phelan was the member of the charge of the station and the accused was provided with a notice of his rights which were explained to him and the copy of Form C72 was given to him. Garda Phelan was available to give evidence but his evidence was not required by the Solicitor for the accused."

3. The learned judge of the District Court then sets out the procedure carried out at the Garda Station in regard to the giving of a sample of blood by the accused. All the proper procedures in this regard were fully followed. The sample was correctly forwarded to the Medical Bureau of Road Safety and it transpired that there was a concentration of 235 milligrams of alcohol per 100 millilitres of blood in the sample. The learned Judge continues the Case Stated as follows:-

"At the conclusion of the prosecution case Mr O'Sullivan's Solicitor, on behalf of the accused submitted that on the foregoing facts the charge against his client should be dismissed. He sought a dismissal of the charge on the grounds that the arrest of his client had not been stated and explained to the accused at the time of his arrest nor had there been evidence that theGarda had expressly invoked this specific section during the arrest. He referred to the decision of the High Court in DPP v Mooney [1992] 1 IR 548 and also the decision in Brennan v DPP (unreported Supreme Court 1st November 1995). He submitted that the reason for the arrest must be made clear to the arrested person. He pointed out that Garda Nugent in her evidence had not stated that she had expressly informed the accused of her opinion that he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle nor that she was arresting him under Section 49(8) of the Act as a consequence.

In response to these submissions Superintendent Duffe pointed out that Garda Nugent had told the accused of her opinion that he had consumed liquor and also that she had given him a breath test which had proved positive and that as a result of both of these matters being brought to the attention of the accused he must have been well aware of why he was being arrested.

The case was adjourned to Callan District Court on 14th January 1998 to allow relevant case law to be considered and consulted. On that date Mr O'Sullivan, Solicitor summarised his arguments and provided me with a copy of the decision of the Supreme Court in DPP v Brennan (referred to above). He relied in particular on that Court's comment in relation the question of validity of an arrest. Superintendent Duffe addressed me once more in relation to Garda Nugent's evidence and relied upon the fact that Garda Nugent had told the accused of her opinion that he had proved positive. He submitted that the prosecution had adduced sufficient evidence in regard in the circumstances (sic). Superintendent Duffe referred me to the case DPP v Mooney, cited above and to the judgment of the High Court in DPP v Francis Connelly, a decision of Mr Justice Geoghegan of 16th of October 1997 and also to the House of Lords Case of Christie v Mooney (recte Leachinsky) to the effect that the requirements that a person arrested should be informed of the reason for the arrest naturally did not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

I granted a direction finding that the prosecution had failed to establish a prima facie case and I informed the Court that I relied particularly on the decision of the Supreme Court in DPP v Brennan. I took the view that the arrest was invalid as Garda Nugent had not, at the time of the arrest, expressly told the accused either the section under which he was being arrested nor the reason for the arrest.

The State being dissatisfied with my decision have issued a notice requiring a Case Stated.

The determination of this Honourable Court is therefore sought on the following question at law:-

"Where the evidence established that the accused had not been informed at the time of his arrest of the fact that he was being arrested pursuant to Section 49(8) of the Road Traffic Act 1961, as amended by Section 10 of the Road Traffic Act 1994, nor of the fact that he was being arrested for an offence pursuant to any provision of the Road Traffic Legislation whether in technical or layman's language; was I correct in dismissing the charge against the accused?"

4. In their submissions before me Counsel for the Appellant Director of Public Prosecutions and Counsel for the Respondent agreed that it was open to this Court to consider, in addition to the question framed by the judge, a question as to whether the judge was correct in dismissing the charge against the accused where he had found as a fact that Garda Nugent had not informed the accused that he was being arrested.

5. There is no doubt that in the circumstances Garda Nugent was justified in arresting the Respondent. She had noticed that his speech was slurred and that there was a strong smell of alcohol from his breath. She had correctly required him to provide a specimen of his breath and the breath test proved positive. She had formed the opinion that the accused was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle. None of these facts are in dispute.

6. The law in regard to the giving of reasons for an arrest is set out in the well known passage from the speech in the House of Lords of Viscount Simon in Christie v Leachinsky [1947] AC 573 at page 587 as follows:-

"The above citations, and others which are referred to by my noble and learned friend, Lord du Parcq, seem to me to establish the following propositions.

(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

(2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is claimed.

(4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed."

7. This passage was cited with approval by O'Higgins C.J. in the People v Walsh [1980] IR 294 (at page 306) and again by Blayney J. in DPP v Mooney [1992] 1 IR 548 (at page 553).

In DPP v Mooney the arresting Garda had informed the accused that he was arresting him for an offence of "drunk driving" but had not correctly identified the section and sub-section of the Road Traffic Acts under which he was being arrested. Having quoted the passage from Christie v Leachinsky which I have quoted above, the learned Blayney J. went on to say (at page 553):

"It is clear from the fourth of these propositions that a Garda in making an arrest does not have to use technical or precise language. Provided the accused person knows in substance why he has been arrested the arrest is valid. So telling the Respondent that he was being arrested for an offence of drunk driving was a sufficient communication of the reason for his arrest since in my opinion that could mean any of the three offences under the section. He told the Respondent insusbtance why he was being arrested. Furthermore, in view of proposition three, which dispenses with the necessity of giving any reason where the circumstances are such that the person arrested must know the general nature of the offence for which he was being detained, it must be doubtful ifGarda Cloughley was required to give any reason at all. As the Respondent had been required to blow into the breathalyser, and the results had been positive, the Respondent must have been well aware why he was being arrested. However, as the Respondent was in fact informed of why he was being arrested, this question does not arise."

In DPP v Francis Connell (unreported High Court 16th October 1997) the learned Geoghegan J. was dealing with a case where the arresting Garda had wrongly cited the section under which he was arresting the accused. The learned Judge referred to DPP v Mooney in some detail and went on to say (at page 6):-

"Following Mooney's case I likewise take the view that the evidence that Sergeant Connolly informed the Defendant in layman's language that he was being arrested for drunk driving was sufficient communication of the reason for the arrest and indeed I further agree with the suggestion of Blayney J. that having regard to the fact that a breath test was taken and proved positive it was not even necessary to state a reason."

8. Counsel for the Respondent/Accused drew attention to the judgment of O'Flaherty J. in Brennan v DPP (Supreme Court unreported 1st November 1995). This case dealt with the operation of Section 13 of the Road Traffic Act 1978 under which the accused had been required to provide a blood or urine sample for testing. While the Garda had "quoted almost verbatim the wording of Section 13" he had not actually cited the section. The learned O'Flaherty J. held that there was no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and no policy purpose was served by requiring members of the Gardai to invoke the actual section on which the requirement is based in those circumstances. The learned judge went on to add (at page 10):-

"There is, therefore, no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and no policy purpose is served by requiring members of the Gardai to invoke the actual section on which the requirement is based in these circumstances. The requirements for a valid arrest are different since the deprivation of the person's liberty is involved and, in general, it will be necessary for a Garda to invoke the operative section when he makes an arrest."

9. This dictum of the learned O'Flaherty J. is, however, clearly obiter, and couched in very general terms. It seems to me that in a case such as the instant case, where the reason for his arrest must have been abundantly clear to the accused, the approach taken by Blayney J. and Geoghegan J., based as it is on the classic statement of the rights of the arrested person in Christie v Leachinsky, is preferable. I consider, therefore, that the answer to the specific question posed by the learned judge of the District Court is "No".

10. However, the evidence before the judge and the facts as found by him on the evidence go further than the question as actually framed in the Case Stated. The judge of the District Court found as a fact that the arresting Garda, Garda Nugent, did not inform the accused that he was being arrested. As I pointed out earlier, Counsel agreed that it was open to me also to consider the question raised by this aspect of the evidence. I consider that it is proper for me to do so.

11. Counsel for the accused submitted that in order for there to be a valid arrest the person who is being taken into custody must be informed that he is being arrested, or at least being put under restraint. He referred to the judgment of Hederman J. in the Supreme Court in the case of DPP v McCreesh [1992] 2 IR 239 at page 250, where the learned judge stated:

"An arrest consists in or involves the seizure or touching of a person's body accompanied by a form of words which indicate to that person that he is under restraint. Whilst the older cases held that words alone would not suffice to constitute an arrest, nowadays words alone may amount to an arrest if, in the circumstances, they are calculated to bring, and do bring, to the person's notice that he was under restraint and he submitted to the compulsion - see e.g.Alderson v Booth [1969] 2QB 216.

On the facts as found by the learned Circuit Court Judge, it is clear that the Defendant, on first being told that he was under arrest, did not submit to the compulsion - on the contrary he told the Garda that he was on private property and was a trespasser and should leave immediately. The relevant 'arrest' in this case therefore took place subsequently when the Garda took the Defendant by the arm and told him that he was arrested and must come to the Garda Station."

12. This, Counsel submitted, made clear that "a form of words which indicate to that person that he is under restraint" was an essential part of a valid arrest. Since Garda Nugent had not indicated to Mr McCormack that he was under restraint the arrest was not, on this occasion, a valid arrest and therefore all that followed from that arrest was vitiated.

13. Counsel for the Director of Public Prosecutions, Mr McDonagh, submitted that the main point at issue in McCreesh's case is whether an arrest which had taken place on private property, in the driveway of the accused's dwelling, was a valid arrest. The question of whether a "form of words" is necessary for a valid arrest was not canvassed in that case and therefore the remarks of the learned Hederman J. on the subject were obiter. Counsel argued that the existence of an arrest was a matter of fact. In the instant case the accused must have been well aware that he was being arrested as well as of the reasons for his arrest. All procedures which followed in the Garda Station were properly carried out and the accused co-operated with those procedures. The significance of the co-operation of an accused person in the giving of blood or urine samples had been stressed by the Supreme Court in both Brennan v DPP and Madigan v Judge Devally and the DPP (Supreme Court unreported Lynch J. 28th January 1999).

14. Neither of these cases, however, deal with the essential elements of an actual arrest.

15. The necessary elements of a valid arrest and related questions regarding arrest in connection with offences under the Road Traffic Acts are discussed at some length by Mr Mark de Blacam in the second edition of his work "Drunken Driving and the Law" at page 33 onwards. At page 36 the author states:

"A valid arrest ordinarily entails two elements. It must ,first, be conveyed to the person arrested that he is no longer at liberty....."

(Mr de Blacam is here referring to an arrest without warrant). The author goes on to refer to the passage from the judgment of Hederman J in McCreesh already quoted.

16. Under the Road Traffic Acts the members of the Garda Siochana are given important statutory powers of arrest without warrant. Since, as was stressed by O'Flaherty J. in DPP v Brennan, an arrest involves the deprivation of a person's liberty, it is important that it be made clear to that person that he or she is actually under arrest. It seems to me that it is not sufficient simply physically to take the person into custody; a form of words indicating that the person is under restraint is necessary to complete a valid arrest. Even if that were not my own view, I would hold myself to be bound by the dictum ofHederman J. in the McCreesh case.

17. Therefore, while I would answer the actual question posed in the Case Stated by the learned judge of the District Court in the negative, I would add that the judge was correct in dismissing the charge against the accused, since the accused was not validly arrested. The lack of a valid arrest vitiated the subsequent procedures in theGarda Station.