No valid arrest if person not expressly told he is actually under arrest

 

Director of Public Prosecutions (appellant) v Michael McCormack (respondent).

Criminal Law - Case stated - Arrest - Respondent having taken breath test with positive results - Whether respondent should have been informed at the time of the arrest of the particular provision pursuant to which he is being arrested - Whether respondent aware of reasons for arrest - Whether respondent validly arrested in circumstances where he had not been told that he was being arrested - Summary Jurisdiction Act 1857, section 2.

The High Court (before Mrs Justice McGuinness); judgment delivered 8 July 1999.

The fact that an arresting garda had not specifically invoked the particular provision pursuant to which she was arresting the respondent did not vitiate the arrest in circumstances where, as a result of taking a breath test and being told that the results were positive, the respondent must have known of the grounds for his arrest. However, there was no valid arrest where it had not be conveyed to the respondent that he was no longer at liberty.

Mrs Justice McGuinness so held in ruling that the District judge was correct to dismiss the charge against the respondent.

Feichin McDonagh BL for the appellant; Jeremy Maher BL for the respondent.

Mrs Justice McGuinness said that this was a case stated by District Judge William Harnett at the request of the DPP and arose out of the prosecution of the respondent with an offence under section 49 (2) of the Road Traffic Act 1961, as inserted by section 10 of the Road Traffic Act 1994. The respondent had been arrested under section 49 (8) of the Road Traffic Act 1961 for an offence contrary to section 49 (2) or (3) of that Act. However, the arresting officer had not informed the respondent, when she was effecting the arrest, of the provision pursuant to which he was being arrested. She had, however, informed the respondent that she was of the opinion that he had consumed intoxicating liquor prior to giving him a breath test, and she had informed him that that test had proved positive.

The district judge took the view that the arrest was invalid as the garda had not, at the time of the arrest, expressly told the respondent either the section under which he was being arrested nor the reason for the arrest. He granted a direction that the appellant had failed to establish a prima facie case, and in doing so he had relied on the decision of the Supreme Court in DPP v Brennan (unreported, 1 November 1995).

The case stated sought the opinion of the High Court as to whether the District judge was correct in dismissing the charge where the evidence established that the respondent had not been informed at the time of his arrest of the particular statutory provision under which he was being arrested, 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. In their submissions before the High Court, the parties agreed that it was open to the 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 respondent where he had found as a fact that the arresting garda had not informed the respondent that he was being arrested.

Mrs Justice McGuinness said that the law in regard to the giving of reasons for an arrest was set out in the well-known passage from the judgment of Viscount Simon in Christie v Leachinsky [1947] AC 573 at page 587 where he held that the following principles applied: "(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."

That passage was approved by the then Chief Justisce Mr Justice O'Higgins in People v Walsh [1980] IR 294, and again by Mr Justice Blayney in DPP v Mooney [1992] 1 IR 548. In DPP v Mooney, the arresting garda had informed the respondent 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. Mr Justice Blayney had held that a garda in making an arrest did not have to use technical or precise language and that this was a sufficient communication of the reason for the arrest since it could refer to any of the three offences under the section. Furthermore, Mr Justice Blayney had held that in view of the third proposition in Christie v Leachinsky, it was doubtful if the garda had been required to give any reason at all. The respondent must have been aware of why he was being arrested since he had been required to blow into a breathalyser, and the result had been positive. In DPP v Connell (High Court unreported, 16 October, 1997) the arresting garda had wrongly cited the section under which he was arresting the respondent. Mr Justice Geoghegan had referred to DPP v Mooney in detail and made similar rulings. Mrs Justice McGuinness said that the respondent had referred to the judgment of Mr Justice O'Flaherty in Brennan v DPP (Supreme Court, unreported, 1 November 1995). In declining to find any breach of the constitutional rights of the accused where a garda had not cited the section under which the accused had been required to provide a blood or urine sample for testing, though the section had been quoted almost verbatim, Mr Justice O'Flaherty had distinguished that case from one where the validity of an arrest was in question, saying that the requirements of a valid arrest were different since the deprivation of liberty was involved. Mr Justice O'Flaherty had said that in general it would be necessary for a garda to invoke the operative section when making an arrest.

Mrs Justice McGuinness said that that statement was clearly obiter and was couched in the most general terms. In the instant case, where the reason for the arrest must have been made clear to the respondent, the approach taken in DPP v Mooney and in DPP v Connell, which was based on the classic statement of the rights of the arrested person in Christie v Leachinsky, was preferable. Mrs Justice McGuinness said that the answer to the specific question posed by the District judge was "No".

However, the evidence before the judge and the facts as found by him on the evidence went further than the question as actually framed in the case stated. The district judge had found as a fact that the arresting garda did not inform the respondent that he was being arrested. The respondent had submitted that in order for there to be a valid arrest the person who was being taken into custody must be informed that he was being arrested, or at least being put under restraint. An arrest consisted in or involved the seizure or touching of a person's body accompanied by a form of words which indicated to that person that he was under restraint. Words alone might amount to an arrest if, in the circumstances, they were calculated to bring, and did bring, to the person's notice that he was under restrain and he submitted to the compulsion: per Mr Justice Hederman in the Supreme Court in DPP v McCreesh [1992] 2 IR 239, at 250.

Mrs Justice McGuinness said that the necessary elements of a valid arrest were discussed at length in De Blacam: Drunk Driving and the Law, 2nd edition, at page 33. The author stated that one element of a valid arrest (where it was being made without warrant) was that it must first be conveyed to the person arrested that he was no longer at liberty. Mrs Justice McGuinness said that under the Road Traffic Acts, the gardai were given important statutory powers of arrest without warrant. Since an arrest involved the deprivation of liberty, it was important that it was made clear to the person that he was actually under arrest. It was not sufficient simply physically to take the person into custody: a form of words indicating that the person was under restraint was necessary to complete a valid arrest. Mrs Justice McGuinness said that even if that was not her own view, she would be bound by the dictum of Mr Justice Hederman in DPP v McCreesh. Therefore, while the question posed in the case stated was answered in the negative, it was held that the district judge was correct in dismissing the charge against the accused since the accused had not been validly arrested. The lack of a valid arrest vitiated the subsequent procedures in the Garda station.

Solicitors: Chief State Solicitor for the appellant; Poe Kiely Hogan (Kilkenny) for the respondent.