Arrest of suspected drunk driver is not invalidated by garda asking him to pull in to side of the road
Director of Public Prosecutions (prosecutor) v Donal Penny (defendant)
Road Traffic Case stated. Whether a requirement to continue driving after forming an opinion that an offence under the 1961 Act was committed rendered the arrest unlawful; Whether a requirement to continue driving vitiated the opinion that an offence had been committed. Road Traffic Act, 1961 ss.49,109
The High Court (Ms Justice Dunne); judgment delivered July 27th, 2006.
The court will not interfere with a procedure, otherwise proper, on the basis of disapproval of some step taken in its general context. Where all of the necessary ingredients are present for a valid arrest under s.49 of the 1961 Act, a requirement by a garda that the defendant continue driving a short distance does not prejudice the defendant in any way, nor does that requirement vitiate the opinion formed by the garda.
The High Court so held in answering consultative case stated in favour of the prosecutor.
Paul Anthony McDermott BL for the prosecutor; Mark De Blacam SC and James B. Dwyer BL for the defendant.
Ms Justice Dunne said this was a consultative case stated pursuant to the provisions of s.52 of the Courts (Supplemental Provisions) Act 1961, by District Judge Catherine Murphy arising out of a sitting of the Dublin Metropolitan District Court on June 30th, 2005. On that date the defendant appeared before the learned District Judge to answer a complaint in which he was charged with having driven a mechanically propelled vehicle in a public place on November 2nd, 2003, at Templeogue Road, Dublin 6, while there was present in his body a quantity of alcohol such as that within three hours after so driving, the concentration of alcohol in his breath exceeded a concentration of 35 mgm of alcohol per 100ml of breath contrary to s.49(4) and (6)(a) of the 1961 Act, as amended.
The relevant facts proved or admitted were as follows: on November 2nd, 2003, Garda Hallinan was on duty at a checkpoint on the Templeogue Road at approximately 8.30 p.m. A vehicle was stopped at the checkpoint and Garda Hallinan spoke to the driver, the defendant herein. He noted that there was a smell of alcohol from the driver and that his speech was slurred. Garda Hallinan formed the opinion that the defendant was intoxicated to such an extent as to render him incapable of operating a mechanically propelled vehicle in a public place. He then asked the defendant to pull over to the side of the road having formed the opinion that he had committed an offence under s.49 of the 1961 Act. He stated that the checkpoint was in the middle of the road. He watched the defendant drive off the main road into Rathdown Park. He did not order the defendant to drive into Rathdown Park but merely to pull over. He then effected the arrest of the defendant. The defendant was brought to Terenure Garda Station and subsequently a breath test was obtained from him.
At the conclusion of the prosecution evidence, counsel for the defendant sought a direction on a number of grounds which were rejected save for one, which gave rise to a consultative case stated. Having heard submissions from both sides, the learned District Judge was of the view that while she was not going to accept the contentions made on behalf of the defendant, she was nonetheless prepared to state a case on a consultative basis having regard to the novelty of the point raised.
Accordingly, the opinion of the High Court has been sought on the following questions: (a) was the arrest of the defendant lawful in circumstances where Garda Hallinan, having stated that he formed the opinion the defendant had committed an offence contrary to s.49 of the Road Traffic Act 1961 as amended, then required the defendant to continue driving albeit a short distance? (b) In the alternative, was the requirement that the defendant continue driving sufficient to vitiate Garda Hallinan's opinion that the defendant committed an offence under s.49 of the said Act?
Submissions were made by counsel on behalf of the prosecutor. In the first instance, he contended that as a matter of common sense, a member of the Garda manning a checkpoint in the middle of a busy road is entitled to request a driver to pull over before the arrest process is completed. He noted that the driver did so voluntarily. He pointed out that it had not been suggested that any of the ingredients which go to make up a valid arrest had been omitted by the garda. Accordingly, he contended that the ingredients of a valid arrest were present in that the arresting officer formed the necessary opinion and the defendant was informed of the reason for the arrest. The main point made by counsel for the prosecutor was that even if the request made to the driver of the vehicle to pull over to the side of the road amounted to a potential wrong or indeed a potential offence, he stated that it was unclear how that potential illegality could affect the validity of the arrest.
He pointed out that there was no causal connection between any illegality and the arrest. In such circumstances, the Garda derived no benefit from what is contended to be an illegal act. In support of his contention in that regard he referred to the case of The People (DPP) v Spratt 2 ILRM 117, wherein it was held that evidence must be excluded only if it is obtained as a result of a breach of a person's constitutional rights, which requires a causative link between the breach and the obtaining of evidence. The court should look to see how the accused is prejudiced by any breach and whether information was obtained which might not otherwise have been obtained. Counsel stated that there was nothing to show that the applicant in the instant case was prejudiced as a result of the alleged illegality or to suggest that as a result of the alleged illegality the gardaí were unable to affect an arrest they would otherwise have been unable to effect. It was emphasised that all of the ingredients of a valid arrest were present. Counsel then argued that even if the gardaí were incorrect in asking the accused to pull over to the side of the road, it did not follow that the prosecution itself should be dismissed. He referred to the decision in the case of Lynch v Attorney General 1 ILRM 129. The Supreme Court held that while the courts will not normally permit a party to have the benefit of what flows from an illegality or an unconstitutional act, the courts will not normally interfere with a procedure otherwise proper on the basis of disapproval of some step taken in its general context. The final argument raised by counsel related to the second question posed in the consultative case stated. Counsel posed the question as to how subsequent events could vitiate an opinion. He argued that the opinion was a fact found in the case. In practical terms, the opinion evidence in the case was uncontroverted and he pointed out that it is difficult to see how an opinion can be "vitiated". The question as to whether someone held a particular opinion or not is a question of fact. That fact cannot be vitiated by subsequent events.
Counsel for the defendant submitted that the question to be considered by the court on the case stated was whether it was lawful for the Garda to oblige the defendant to move his vehicle in circumstances where the Garda had formed the opinion that the defendant had just committed a drink driving offence. He referred to s.109(1) of 1961 Act as amended, which provides that:
"A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the Garda Siochána and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties."
Counsel described the first question as being somewhat ambiguous in that it referred to the fact that the Garda had "required" the defendant to continue driving. In the case of D.P.P. (Stratford) v Fagan 2 ILRM 349, it was held that the gardaí are under a common law duty to detect and prevent crime. Consequently, if they find it necessary to require motorists to stop in order adequately to detect and prevent crime, they have full power to do at common law.
Counsel accepted this proposition, but argued that such power stopped short of offering a justification for requiring a driver, whose vehicle had been stopped, to resume driving in circumstances where by so doing he may be committing an offence. He also referred to the provisions of s.110 and queried whether there could be a power under the provisions of that section which provide for the disposal of vehicles temporarily where a person has been arrested under the 1961 Act as amended. He pointed out that for that particular section to come into effect, an arrest must have been made. Equally, he added that there is nothing in the section which suggests that the arrangements for temporary disposition of a vehicle could include an act which constitutes the commission of an offence.
The next point raised by counsel for the defendant related to the principle against self incrimination. He referred to the case of In Re National Irish Bank 3 IR 145 in which Shanley J. at pl.153 made the following comment about the privilege against self incrimination namely: "That it has always encapsulated a right in the individual to refuse to answer a question or produce a document when to do so would in the opinion of a court tend to expose such an individual to a real risk of criminal prosecution or penalty." Counsel referred to a decision in the case of Johnson v Phillips RTR 170. In that case, the police attended an incident in a narrow one-way street where there was an ambulance in which two patients were being treated. The defendant drove his car into the same street and stopped some 10 feet behind the ambulance. One of the police constables attending the scene twice instructed the defendant to reverse his car some 15 yards into the street from which he had come because he was obstructing the removal of injured persons and other ambulances were expected. The defendant refused to move, saying that he could not do so because it was a one way street. He was arrested and charged with obstructing the constable in the execution of his duty. The justices dealing with the case were of the opinion that the constable was acting in the course of his duties, that the reversing manoeuvre was awkward but not dangerous and that the defendant in refusing to reverse so as to drive the wrong way in a one way street was wilfully obstructing the constable and the defendant was convicted. Ultimately a case was stated and the following question arose in that case "has a constable in purported exercise of his power to control traffic in a public road the right under the common law to obey a traffic regulation such as going the wrong way along a one-way street?"
In the course of his judgment, Wien J. stated at p.176: "The law protects the liberty of the subject, but it must recognise that in certain circumstances which have to be carefully considered by the courts, a constable may oblige persons to disobey a traffic regulation and not only in those cases that are explicitly dealt with by parliament. In the judgment of this court a constable would be entitled, and indeed under a duty, to give such instruction if it were reasonably necessary for the protection of life or property. Relying on the authority referred to above counsel submitted that there was no evidence in this case that it was necessary to protect life or property to request someone to commit an illegal act. Counsel pointed out that there was no evidence in the instant case as to the circumstances other than a reference to the fact that the checkpoint was in the middle of the road. Accordingly, he submitted that even if there was such an entitlement to require someone to commit an act which might constitute an offence, then such a requirement could only be permissible when it is necessary to protect life or property.
In respect of the second question in the case stated, counsel pointed out that the opinion was formed after Garda Hallinan had stopped the defendant but before he required him to remove his vehicle. In essence, counsel argued that the opinion expressed to have been formed by Garda Hallinan could not have been genuinely held by him because if he genuinely believed that the defendant was incapable of operating his vehicle in a public place, he would not have required him to move that vehicle. He reiterated his earlier submission that the garda had put the defendant in a position where he could be prosecuted for committing a subsequent offence, ie at the request of the garda in driving the vehicle whilst he was incapable of doing so.
Ms Justice Dunne said in respect of the principle against self-incrimination that that concept arises in the context of privilege and the right of an individual to refuse to answer questions or produce documents when to do so would expose an individual to a real risk of criminal prosecution or penalty. Whilst the argument made by counsel on behalf of the defendant was that what occurred in the instant case was a breach of the principle against self incrimination by requiring the defendant to move his car to the side of the road, in circumstances where the garda had already formed an opinion under s.49, Ms Justice Dunne said she was of the view that that had nothing to do with the concept of self-incrimination as understood in relation to the privilege against self-incrimination.
Ms Justice Dunne said that as a matter of practicality, Garda Hallinan having formed the opinion that the defendant was not capable of operating a mechanically propelled vehicle in a public place should not then have asked him to pull over to the side. It would have been more appropriate for the garda in operating the checkpoint to ask motorists to pull over to the side of the road before dealing with them or alternatively, if having stopped someone at the checkpoint and he had come to the view that that person was suspected of drunk driving, to arrange for the removal of the vehicle after the arrest of the suspect.
Ms Justice Dunne stated that it was clear from the facts of this case that the arrest of the defendant did not occur solely as a result of the request to pull his vehicle over to the side of the road. He could have been arrested without that request having been made. The garda had already formed the necessary opinion to bring into existence the power of arrest under s.49. It was not suggested that any prejudice has been suffered by the defendant as a result of that illegal act. Nothing flowed therefrom. All that has been suggested was that the arrest was tainted by what was described as an illegal act and that everything that followed thereafter was effectively tainted. It was not suggested that any information was obtained as a result of being asked to move the car over which might not have been otherwise obtained. In those circumstances, Ms Justice Dunne said there was no causative link between the act complained of and the obtaining of evidence.
Ms Justice Dunne said that whilst much of the evidence in the case proceeded on the basis of the assumption that the requirement to move the car was a requirement to commit an illegal act, it did not necessarily follow that in every case such a requirement would in fact amount to an illegal act. In order to carry out the arrest, the garda necessarily had to form the requisite opinion under the section. Having done so, it did not follow that in fact it would have been an offence for the defendant to have driven his vehicle in compliance with the direction. On the removal of the defendant to the garda station for the purpose of obtaining the requisite blood, urine or breath sample it could have transpired that the concentration of alcohol in his blood, urine or breath did not exceed the permitted amount. In those circumstances, clearly there would be no subsequent prosecution for an offence under s.49 and moving the car could not be an illegal act.
Ms Justice Dunne said she was satisfied that as all of the necessary ingredients were present for a valid arrest and then, notwithstanding that the garda required the defendant to continue driving a short distance, nothing occurred which had the effect of prejudicing the defendant in any way. In this context, the words quoted from the judgment of Hardiman J. in the case of Lynch appeared apposite: "But it (the court) will not interfere with a procedure, otherwise proper, on the basis of disapproval of some step taken in its general context". Accordingly, Ms Justice Dunne said that the first question posed for the opinion of the High Court should be answered yes.
As to the second question posed in the consultative case stated, Ms Justice Dunne was of the view that the argument of counsel for the prosecutor in regard to that question was well founded. One of the facts proved and/or admitted in the case stated was to the effect that Garda Hallinan formed the opinion that the defendant was intoxicated to such an extent as to render him incapable of operating a mechanically propelled vehicle in a public place. The power under s.52(1) of the Courts (Supplemental Provisions) Act, 1961 is to refer any question of law arising in the proceeding for determination. In the course of his submissions, counsel on behalf of the defendant urged the court to look at the surrounding circumstances in order to examine the validity of the opinion of the garda. No doubt there may be circumstances which as a matter of law one could say that the surrounding facts could not support the opinion. However, in the present circumstances, there was a finding of fact that the guard had formed the necessary opinion. In those circumstances, that being so, Ms Justice Dunne said as she could not see how a fact so found could be vitiated by subsequent events the answer to the second question was no.
Solicitors: Chief Prosecution Solicitor for the prosecutor; Carley & Co. (Dublin) for the defendant.
P.J.Breen, barrister