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1. By order of the 3rd of March 2000 made by Lavan J. the Applicant was given leave to seek the relief of Certiorari to quash a conviction and Order made by the first named Respondent on the 26th of January 2000 for the offence of drink driving contrary to Section 49 of the Road Traffic Act, 1961 as inserted by Section 10 of the Road Traffic Act, 1994 on the grounds

2. The application is grounded upon the affidavit of the Applicant himself who deposes that at the hearing of the complaint against him, Detective Garda L.J. Kennedy gave evidence that, whilst stopped at the traffic lights at the Airmotive Factory on the Naas Dual Carriageway he saw a vehicle being driven through the said lights and the left tail light of the vehicle was not lit. The Garda said he kept the vehicle in his view, caught up with it and noticed it was being driven in an erratic manner from one side of the road to the other at various speeds from 30-90 m.p.h.. Eventually, on the outskirts of Naas the car slowed down and did a U-turn when it seemed to stall. Garda Kennedy jumped out, opened the door of the car and took the keys from the ignition. The Garda said that he didn’t want the driver to drive again because of his demeanour and he looked heavily under the influence of alcohol. The Defendant, he said stumbled out of the car and mumbled something which he could not understand. At that stage, Garda Kennedy said he identified himself as a member of the Garda and informed the Defendant he was waiting for Garda assistance. He said he was there for a few minutes when Sergeant Gerald M. Goode arrived. He said he then informed the Sergeant of the position.

3. The Applicant says that Garda Kennedy was not able to say what assistance he expected to obtain from his colleagues when they arrived nor why he did not identify himself as a Garda before he opened the Defendant’s car door and seized the car keys from the ignition. Garda Kennedy admitted the Defendant was not free to go, that he did not tell the Defendant why he was being detained and did not formally arrest him.

4. The Applicant states that Sergeant Goode then gave evidence to the effect that at 12.40a.m. on the date of the offence alleged he was on duty at Dublin Road, Naas and observed two vehicles parked at the place of the offence. He said he saw two persons, one lying against the bonnet of a red car and the other person using a mobile phone. The latter identified himself as Detective Garda Kennedy who informed him of what had happened. Sergeant Goode said he then spoke to the Defendant who admitted driving, and, having got a strong smell of intoxicating liquor from his breath, he formed the opinion that the Defendant was committing an offence under Section 49 and arrested him for drunk driving. He was taken to Naas Garda Station where he provided a blood specimen to the designated doctor which, when analysed showed a reading of 221mg of alcohol per 100ml of blood.

5. Counsel for the Defendant in the District Court made the submission to the Respondent judge that Garda Kennedy in his evidence gave no legal justification for the detention of the Defendant which in the circumstances amounted to the arrest of the Defendant, that he did not invoke the operative section of any statute as he was required to do by law and, therefore the detention and arrest of the Defendant were a breach of the constitutional right to liberty and contrary to law. Counsel submitted that from the time Garda Kennedy stopped the Defendant, took the keys of his car and awaited the arrival of assistance, the Defendant was in unlawful detention. Counsel stated that the drink driving code had its own specific regulatory procedures which were not followed by Garda Kennedy and insofar as Sergeant Goode could have sought to validate Garda Kennedy’s actions he failed to do so. It is submitted that Sergeant Goode’s arrest of the Defendant was bad and contrary to law and all actions subsequently taken and evidence obtained by the Sergeant were therefore inadmissible in law. Counsel referred the Respondent judge to case law in support of his submissions. It is then stated that the Respondent judge replied in reference to the Defendant “He was drunk, wasn’t he” on the occasion and held the actions of Garda Kennedy and Sergeant Kennedy to be good and proper in the circumstances. It is stated that the Respondent declined to deal further with the submissions of Counsel and in particular failed to inquire into the alleged failure of the Gardaí to vindicate the constitutional rights of the Applicant to his liberty. It is deposed further by the Applicant that the Respondent judge concluded his remarks by stating that a civil remedy was available to the Defendant (the Applicant herein) if he felt he was falsely imprisoned on the occasion. Counsel responded that his instructions and submissions before the Court did not imply any such intention on the Defendant’s part, that the issue in his submission was not whether the Defendant was drunk or otherwise and that his submission stood on its own individual merits for the purpose of the proceedings before the Court. The Defendant in the District Court then gave evidence and was cross examined. In cross examination he accepted that the period of his detention by Garda Kennedy might not have been more than a few minutes. It is stated further that Counsel repeated his submissions to the first named Respondent and the submission was refused. It is recorded that the Applicant was convicted and having had one previous like conviction was disqualified for a period of forty-eight months and fined £800 with 90 days to pay or 15 days in default. The date of disqualification was postponed to the 1st of April 2000.

6. It appears that, following the conviction, a request was made in writing to the first Respondent to state and sign a case to the opinion of the High Court pursuant to the provisions of Section 2 of the Summary Jurisdiction Act, 1857 as amended and extended by Section 51 of the Courts (Supplemental Provisions) Act, 1961. It appears that the Respondent judge refused on the basis that he was not obliged to do so unless the request was made at the behest of the Prosecution. It appears that the Respondent judge indicated that it was open to the Applicant to seek a Judicial Review of his decision.

7. On behalf of the Director of Public Prosecutions opposition has been filed and a Statement of Opposition has been verified by an affidavit of Superintendent John Murphy. He has not taken issue with most of the relevant averments in the affidavit of the Applicant but states, with regard to the Applicant doing a U-turn in his car, that the evidence was that the car turned left off the road and then did a U-turn, and stopped. It is further stated that Detective Garda Kennedy stopped his car, opened the door of the car and took the keys out of the ignition as he did not want the driver to drive again as he was under the influence. It appears that after the Applicant got out of his car that Garda Kennedy identified himself as a member of Garda Síochána. He went to use his mobile phone and Sergeant Goode then arrived before he could make the call. In other words Garda Goode came upon the incident before it was reported by Garda Kennedy. It is stated that the Defendant was in the company of Detective Garda Kennedy only for a very short space of time before Sergeant Goode arrived. It further appears that in evidence the Applicant could not state how long it was before Sergeant Goode arrived on the scene. In answer to a question by the Superintendent who was prosecuting, the Applicant admitted he was very drunk and could not recall the matter very clearly. The Superintendent states further that he made the point which was accepted by the first named Respondent that it was only a matter of seconds between the Applicant stopping his car and the arrival of Sergeant Goode and that Garda Kennedy did not have sufficient time to use his phone to contact Naas Garda Station.

8. On behalf of the Applicant Mr Tom Cahill of Counsel submits that three issues arise, firstly, whether the action of Garda Kennedy at the outset amounted to a detention and arrest of the Applicant; secondly, whether he was entitled to arrest the Applicant without explaining under what Section of the Act he was doing this, without explaining to him that he was effecting his arrest, and thirdly, whether the Respondents could defend the actions of the Gardaí in the circumstances. With regard to the submission that the Applicant was entitled to an explanation for his detention and arrest it is admitted that the Garda did not invoke any statutory authority for the detention of the Applicant nor on his own admission did he formally arrest him. It is pointed out that the Gardaí did not seek to invoke the provisions of Section 12(1)(c) of the Road Traffic Act, 1994 which is a statutory authority given to members of the Garda Síochána to require a person in charge of a mechanically propelled vehicle in a public place to remain at that place for not more than one hour until a breath test apparatus is available to the requesting member. Counsel referred this Court to the decision of the Supreme Court in the case of Derek Brennan -v- The Director of Public Prosecutions [1996]1 IRLM 267 where O’Flaherty J. indicated that the requirements for a valid arrest, since the deprivation of the person’s liberty is involved, is such that in general, it will be necessary for a Garda to invoke the operative section when he makes an arrest.

9. It is submitted that the action of Garda Goode was one whereby he purported to make good the actions of his colleague Garda Kennedy. It is submitted that the evidence subsequently obtained was in breach of pre-trial procedure and of the Applicant’s constitutional rights. Counsel referred this Court to a number of authorities including The State (Trimbole) -v- The Governor of Mountjoy Prison [1985] IR 550 and The People (Director of Public Prosecutions) -v- Kenny [1990] ILRM 569 which authorities address the responsibilities of the Court to deal with not only issues of admissibility of evidence but also contempt of Court by unconstitutional action. Counsel further submitted that the Applicant’s detention amounted to an arrest. This was not contested by Counsel on behalf of the Director of Public Prosecutions.

10. It is further submitted that the Respondent judge failed to consider any submissions relating to the Applicant’s detention and arrest and that he failed to conduct any form of inquiry. Reference is made to his use of the words “He was drunk, wasn’t he” in support of this contention. It is submitted that this indicated a substantial failure of justice and was contrary to the requirements of this Court as indicated in the case of Coughlan -v- Pattwell & the Director of Public Prosecutions [1993] 1 IR 31 in support of the contention that the District Court has a duty to act constitutionally and has jurisdiction to and should hear submissions in relation to an alleged infringement of procedures adopted in breach of an individual’s constitutional rights.

11. On behalf of the Director it is submitted that the actions of Garda Kennedy amounted to an initial arrest of the Applicant. It is submitted that notwithstanding the fact that the Applicant wasn’t expressly informed of the reason for his arrest that it was a valid arrest under the terms of Section 49 of the Road Traffic Act , 1961 as amended. It is submitted that insofar as the facts of the case are concerned that it must have been clear to the Applicant that he knew the reason for his arrest, namely that he was engaged in drunk driving. In this regard particular reliance is placed upon the decision of Blayney J. in the case of The Director of Public Prosecutions -v- Mooney [1992] 1 IR 548. Blayney J. referred in particular to the decision of O’Higgins C.J. in the case of The People -v- Walsh [1980] IR 294 where he cited with approval a passage from the speech of Viscount Simon in the House of Lord in the case of Christie -v- Leachinsky [1947] AC 573 at page 587. The quoted passage in that case indicates a number of propositions which can be summarised as follows:

12. It is submitted that in the instant case, when the Applicant was apprehended by Garda Kennedy and the keys of his car taken from him, the reason for his arrest must have been apparent to him.

13. While Counsel for the Applicant has relied upon the decision in the case of The Director of Public Prosecutions -v- Daly , unreported Hamilton P. ex tempore delivered 3rd March 1986 which related to conduct on the roadway amounting to an arrest of the Defendant in that case, it is submitted that the point that arose in that case has now been dealt with by the provisions of Section 12 of the Road Traffic Act, 1994. It is submitted that in the instant case the situation is quite different. Here the Garda concedes that the Applicant was arrested at the scene unlike the Garda in that case who denied that the Defendant was under arrest at that time. Essentially reliance is placed upon the fact that the Applicant must have known of the reasons for his arrest and that in these circumstances it was not an illegal one.

14. With regard to the submission by Counsel for the Applicant that the arrest by Sergeant Goode is invalid as constituting an arrest upon an arrest Counsel on behalf of the Director submits that this is an incorrect statement of the law and relies in particular upon the authorities of The People -v- Kehoe [1985] IR 444 and The Director of Public Prosecutions -v- O’Shea [1996] 1 IR 556 and further to the authority of Hegarty -v- The Director of Public Prosecutions [1998] 1 IR 412.

15. In the first of these cases the Supreme Court rejected the view expressed by Henchy J. in the case of The State (Walsh) -v- Maguire [1979] IR 372 where he stated at page 386:-

16. In the subsequent case of The Director of Public Prosecutions -v- O’Shea , Blayney J., following the decision in The People -v- Kehoe , accepted that the Applicant in this case had previously been arrested by a Customs Officer and that this did not invalidate his subsequent arrest by a member of the Garda Síochána. In the Hegarty case Geoghegan J. indicated

17. Finally, it is submitted on behalf of the Director that if the Respondent judge erred in law, this is something which is not susceptible to challenge by way of an Application for Judicial Review but is more appropriately challenged by way of an appeal by way of case stated. With regard to the Applicant giving evidence in the District Court, counsel on behalf of the Director submits that from the evidence before this Court it does not appear that he gave any evidence that he was not aware of the reason for his arrest when he was detained by Garda Kennedy. It appeared that Garda Kennedy seized the keys of the car to prevent the Applicant driving the car further and detained him in light of his apprehension that he was drunk and unfit to drive.

18. In reply to submissions made on behalf of the Director counsel for the Applicant submits that the cases cited in support of an arrest upon an arrest by Counsel for the Director do not apply in the instant case. It is submitted that they all were cases where the initial arrest was on a different basis to the subsequent arrest and related to different offences. Counsel for the Applicant has referred this Court to the decision of Lynch J. in the case of Rory Madigan -v- Devally and The Director of Public Prosecutions (unreported High Court 28th January 1999) and submitted by reference to this decision that there was no power to arrest someone for a drunk driving offence at common law and that one had to have regard to the fact that the Road Traffic Act gave express power of arrest. Counsel reiterated that the arresting Garda was obliged to tell the Applicant the reason for his arrest. He did concede that if the reason was clear to the Applicant, arrest may be effected without a reason being given. It was submitted, however, that on the facts of the instant case that this Court could not conclude that the matter was so clear. Counsel again reiterated that the Gardaí had available to them the powers of Section 12(1)(c) of the Act of 1994 to hold for the purposes of obtaining a breathalyser but this was not done in the instant case. With regard to the arrest by Sergeant Goode it is submitted that he sought to put matter right but did not give reasons for his arrest.

19. Insofar as this is an application by way of Judicial Review the essential function of this Court is to ascertain whether the decision making process as opposed to the decision itself was in accordance with law or whether it offended some essential principle of law. The Applicant submits that the Respondent judge failed to give a fair hearing insofar as he failed to address the submissions made by Counsel on behalf of the Applicant. It is clear from the terms of the affidavits filed before this Court that the Respondent judge rejected the submissions made by Counsel on behalf of the Applicant and upheld the arrest by the Garda when the Applicant was first stopped. It is in this context that it appears that he used words “He was drunk, wasn’t he” in support of a conclusion that it was abundantly clear that the Applicant was drunk at the time. This conclusion was such as would enable the Respondent judge to conclude that the arrest in question of the Applicant was one effected in circumstances where it was not necessary to tell the Applicant the reason why he was being arrested as it was abundantly clear to him that he was engaged in drunk driving at the time. I am inclined to the view, notwithstanding the words used by the Respondent judge, that his action cannot be construed as not entertaining the submission made to him but in fact amounted to an indication that he rejected the submissions made by Counsel of behalf of the Applicant. In this regard, I conclude that the Respondent judge did not fail to comply with the principles of natural or constitutional justice in this case by failing to address any legal submissions made by Counsel for the Applicant at the close of the case for the Prosecution and further at the close of the case for the Defence. I take the view that he entertained the submissions made but rejected them. In doing so he acted within jurisdiction. It is clear from the evidence that he concluded that the detention of the Applicant was not unlawful. Based upon these two conclusions it appears that the third ground must also fail because one cannot conclude in light of this finding that any evidence was obtained in breach of the Applicant’s constitutional rights.

20. With regard to the fourth ground advanced, namely, that the Respondent judge acted in excess of jurisdiction by convicting the Applicant in the face of the clear admissions made by a member of the Garda Síochána that in breach of his constitutional rights the Applicant herein had been deliberately and consciously detained contrary to law, I cannot hold with the Applicant. No such clear admission was made by any member of the Garda Síochána. It is clear from the evidence that the Garda conceded in fact that the Applicant had been detained but at no time did he or any of the members of the Garda Síochána concerned concede that the Applicant had been detained contrary to law. On the facts as outlined I am satisfied that there was evidence before the Respondent judge such as to enable him to conclude that the Applicant must have been aware of the reason for his arrest when detained by Garda Kennedy and, applying the authority of Christie -v- Leachinsky which has been followed in this jurisdiction, it is clear there was no obligation in the circumstances to notify the Applicant of the reason why he was being arrested at the time.

21. With regard to the further arrest by Sergeant Goode, I am satisfied by reference to the law referred to by Counsel by the Director of Public Prosecutions, that there was no legal impediment to the further arrest by Sergeant Goode of the Applicant under the provisions of the Road Traffic Act and in this regard again the Applicant must have been aware of the reason for his arrest. I am further influenced by the fact that on the evidence before this Court there is no indication that the Defendant gave any evidence or any contention was made that he was not aware at the time of his arrest of the reason for his then arrest by Garda Kennedy. In conclusion, that the Respondent judge did not act contrary to natural or constitutional justice by failing to conduct a trial of the Applicant herein in due course of law and contrary to basic fairness of procedures and in light of this fact I must conclude that the Applicant must fail in this application.

22. For the sake of completeness I am satisfied that the decision in the case of Madigan -v- Devally and the Director of Public Prosecutions has no application to the facts of the instant case as at no time has any contention been made by the Gardai concerned that the initial arrest of the Applicant was an arrest under common law and I am satisfied on the evidence before me that the arrest effected was not an arrest at common law.