Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

RESULT: The Court grants leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

Jurisdiction

1. This determination relates to an application to this Court made by the defendant/applicant, for leave to appeal under Article 34.5.3 of the Constitution, from a ruling of the Court of Appeal (Sheehan J., Mahon J., Edwards J.), delivered herein on the 21st December, 2016. The judgment herein was delivered in conjunction with two other matters, where a similar issue is considered. Thus, the judgment of the Court of Appeal is entitled the Director of Public Prosecutions v. Cicero Pires & James Corrigan & Paul Gannon, accused/appellants.

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there should be an appeal to this Court.

3. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Issues

4. The issues which arise in each of these cases are the same. In summary, these relate to relate to the scope of appeals brought pursuant to s.2 of the Summary Jurisdiction Act, 1957, as extended by s.51 of the Courts (Supplemental Provisions) Act, 1961, on a point of law, and the rights of members of An Garda Siochana to use handcuffs in arresting persons for drunken driving, and kindred offences. All three cases, although unconnected with each other, were concerned with prosecutions for offences contrary to s. 4(4) (b) and (5) of the Road Traffic Act 2010.

5. As outlined in the judgment of the Court of Appeal, Mr. Pires was stopped on suspicion of driving while under the influence of alcohol; the arresting garda handcuffed him while affecting his arrest. The garda told the District Court he did so because Mr. Pires was intoxicated, larger in stature than he was, because he was on his own with him, and had to transport him in a garda vehicle without an internal protective barrier.

6. In the case of Mr. Corrigan, the arresting garda is said to have handcuffed Mr. Corrigan because he was “jittery”, hesitated when the garda put his hand on Mr. Corrigan to usher him to the back of the patrol car, but the arrested man was not aggressive, and was co-operative. The garda nonetheless testified he was concerned that Mr. Corrigan might become overwhelmed, or react in panic because of the position he found himself in. The arrest took place on a busy dual carriageway. The garda testified he had a duty of care to ensure the safety of that applicant and the public, and had to convey him to a garda station in a garda patrol car which had no internal protective barrier. In the case of Mr. Gannon, the arresting garda told the District Court that, having formed an opinion in relation to intoxication, the applicant was handcuffed for his own safety, for the safety of gardai, and other road users, as they were standing on the hard shoulder of the M50 which was very busy. It was accepted that Mr. Gannon was compliant and was not aggressive.

The District Court

7. The validity of the arrest of the appellants was challenged in the District Court on the basis that handcuffing was unnecessary and unwarranted. Having considered submissions from counsel for the parties in each of the three cases, the District Judge, Bryan Smith, held that the handcuffing of the three appellants had not been justified as a precautionary measure, and thus rejected the evidence of the garda witnesses that handcuffing was necessary. The District judge proceeded to dismiss the basis of arrest, on his interpretation of the decision of this Court in DPP v. Cullen [2014] IESC 7, [2014] 3 I.R. 30. At the request of the prosecution, the District Court judge stated a case to the High Court posing the following question:

“Was I correct in law to find the arrest(s) unlawful?”

8. The appeal by way of case stated, brought by the Director of Public Prosecutions, was heard by the High Court, (Barrett J.), and judgment was delivered therein on the 9th July, 2015. Barrett J. ([2015] IEHC 671) answered the question posed in the negative.

9. The High Court found that the District judge was incorrect in law in finding that the arrest of the applicant was unlawful. The court found that the District Court judge had contravened principles established in the decision of DPP v. Cullen [2014] 3 I.R. 30, in reaching the conclusion that the arrests were unlawful. .([2015] IEHC 671 at par 39) The learned High Court judge found, at pars 40-41, that the District Court judge had afforded an “insufficiently generous measure of judgment”, and “insufficient latitude” to the arresting members of the gardai in assessing whether handcuffing was necessary in arresting each applicant. The High Court judge held that the District Court judge had paid insufficient regard to the uncommonness of the situations in which handcuffing will in practice be found to be unlawful, and that the District Court judge had paid insufficient regard to the slowness (in the sense of caution) with which the courts will tend to review statements of operational decisions of individual gardaí. The High Court judge based his findings on the statement of facts contained in the case stated. The High Court judge found that the fact that the District Court judge posed the question “Was I correct in law to find the arrest of the accused unlawful?”, constituted a “question of law” for the purpose of the jurisdiction of the court to hear an appeal by way of case stated, under s.2 of the Summary Jurisdiction Act, 1857, as amended. He answered the question posed in the case stated in the negative.

10. Each of the three applicants in the connected cases appealed the decision of Barrett J. to the Court of Appeal. That court (Sheehan J., Mahon J., Edwards J.) dismissed the appeals in a judgment delivered by Mahon J. on the 21st December, 2016, and an order perfected on the 29th March, 2017. ([2016] IECA 413) The issues raised by the applicant here derive primarily from that judgment. Affirming the High Court order, the Court of Appeal found at par 19 that the judge of the District Court had failed to have appropriate regard to the decision of this Court in DPP v. Cullen. The court found at par. 15 that the legal test for the valid application of handcuffs was, where “it was deemed appropriate and/or necessary”, and that the decision to apply handcuffs was “essentially to be made by the arresting officer, having regard to the circumstances pertaining at the time”. The court went on to find at par 26 that the test for the use of handcuffs should be primarily subjective, in the sense of the garda’s analysis of the circumstances, rather than objective reasonableness, and that the test was not, therefore, one of objective reasonableness. The court held that the test to be considered was whether the arresting member of the gardai made a “genuine, albeit subjective, assessment as to what the exigencies of the situation required”. The applicants contend the Court of Appeal reviewed the decision of the District judge to see whether the fact finding process had been arrived at properly, and in compliance with applicable legal principles, and in order to ascertain if a point of law existed. It is said this process contravened s.2 of the Summary Jurisdiction Act, 1857. Upholding the High Court judgment, the Court of Appeal concluded that the District judge had misapplied the law as stated by this Court in DPP v. Cullen [2014] 3 I.R. 30. . (See [2016] IECA 413 at pars 30 & 40.) The court found that the District Court judge had failed to apply Cullen correctly.

11. The applicant now contends that these cases raise important questions of public importance regarding the role of the Superior Courts regarding the scope and availability of appeals by way of case stated, under s.2 of the Summary Jurisdiction Act, 1857, in particular, the basis upon which the Superior Courts can entertain an appeal against an acquittal. It is stated that, of particular importance to delineating the legitimate scope of any such appeal for both the DPP and an accused person, is to define precisely what may constitute a “point of law”. It is contended the High Court and Court of Appeal impermissibly “went behind” the District judge’s findings of fact. It is also said that the appeal involves a matter of general public importance as to the legal test for the legitimate use of handcuffs in affecting an arrest which, it is contended, has been the subject of “apparently conflicting dicta” between judgments of the Supreme Court, and now of the Court of Appeal. It is also contended there are a significant number of “live” prosecutions brought at the suit of the Director, which are pending or have been adjourned, awaiting a final decision in the present case.

12. In essence, it is said, the Court of Appeal erred in holding the facts found by the District judge gave rise to a point of law; was incorrect in holding that the arrest of the applicant had been lawful; and had also erred in holding the test as to the justifiable use of handcuffs was primarily subjective, rather than objective reasonableness.

The Respondent’s Case

13. On behalf of the respondent (“the Director”), it is said that the Notice of Appeal consists of little more than an assertion that the Court of Appeal decision is wrong, but makes no attempt to engage with the test required for leave. It is said this Court has already set out the law in its judgment in DPP v. Cullen, and thus, the applications do not raise any issue of general public importance. It is said that the applicants have received a full hearing in the District Court, High Court and Court of Appeal, and that this Court should, therefore, be slow to grant leave, save in very particular and limited circumstances. It is said that the decision of this Court in Cullen is binding, and was correctly applied by the Court of Appeal. Thus, it is contended there is no conflict between the judgment of this Court in Cullen and the judgment of the Court of Appeal herein, which merely applies Cullen to a particular set of circumstances. It is said the effect of Cullen is that “the discretion must be left to the individual garda dependent on his or her own appreciation of the requirements of the individual case”. The Director is said to be unaware that there are any significant number of live cases pending in which these points arise. It is said that, insofar as the Court of Appeal may be said to have applied a primarily subjective test, it did so on the express wording of this Court, wherein this Court concluded that the discretion must be left to the individual garda, dependent on his own appreciation of the circumstances. It is said that, by way of distinction, Cullen was decided in favour of the accused, because the arresting officer held no belief at all as to the circumstances, having simply applied a blanket policy towards arresting suspects. It is said that, in particular, the error of law the District judge made in the current case was that he himself purported to make that judgment, and was, in substance, applying a legal principle to the effect that unless the accused had actually tried to flee across a busy road, or had actually engaged in, or threatened an act of violence, then the gardai were simply not permitted to apply handcuffs. It is said there was no such principle of law established in Cullen which focused on where the gardai have made no assessment of the circumstances due to the application of a pre-determined blanket policy as to what is to occur.

Discussion

14. A consideration of the judgments of this Court in Cullen, (a case stated from the Circuit Court), sets out the current legal position clearly. In answering the case stated in the affirmative, Fennelly J., with whom Hardiman J. concurred, stated that the standard of reasonableness as to whether the use of handcuffs was justified, was to be seen on the basis that it was unlawful to “place handcuffs on suspects who are being arrested, without giving any consideration to the context and, in particular, to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances. I emphasise of course that it is the police officer who must make that judgment.” ([2014] 3 I.R. 30 at p. 45, par 39) Clarke J., while dissenting on a separate issue, agreed with Fennelly J. regarding the issue of justification, holding “… I would hold that the trial judge was entitled to form the view that the placing of handcuffs on Mr. Cullen was unjustified on the grounds that the relevant sergeant did not believe (and had no basis for believing) that Mr. Cullen was likely to resist arrest or escape unless so restrained.” ([2014] 3 I.R. 30 at p. 55, paragraph 70)

15. The applicant herein says that the judge of the District Court in this case found that the evidence as to the reason for handcuffing “did not show any indication that the application of handcuffs was objectively justified”, and thereby found the arrest unlawful. It is said on behalf of the applicant, that by holding the District judge erred by applying a test of “objective reasonableness”, the Court of Appeal failed to apply the decisions of Fennelly and Clarke JJ. in DPP v. Cullen [2014] 3 I.R. 30, to the effect that the use of handcuffs on the basis of objective reasonableness was an entirely legitimate matter for the District Court judge to consider. Further, it is said a case stated only arises when the District judge erred on a “point of law”. It is said the District Court judge applied a test of objective reasonableness in accordance with the Supreme Court decision in DPP v. Cullen, and found as a fact that the arrest of the applicant was not justified. It is said the District Court judge’s decision was not one that “no reasonable judge” could have come to. In fact, it is said, the District Court judge was entitled to find the arrest of the applicant unlawful and unjustified, in the same sense as a Circuit Court judge had done in the decision of DPP v. Cullen. It is said that the Court of Appeal’s decision itself failed to apply the principles enunciated in DPP v. Cullen, and, in effect, looked behind the fact finding process conducted by the District Court judge, and also acted at variance with the scope of appeal permissible in an appeal on a point of law.

Conclusion

16. It is the view of the Court that two issues of general public importance arise on the facts of the case, first, in light of the issue as to fact finding by a District Court, and second, on the proper understanding and application of DPP v. Cullen.

17. The issues are, therefore:

(a) Did the High Court and Court of Appeal correctly apply the scope and principles contained in s.2 of the Summary Jurisdiction Act, 1851, as amended?

(b) Did the High Court and court of Appeal correctly apply the law as decided in DPP v. Cullen?