In the matter of Section 52 of the Courts (Supplemental Provisions) Act 1961.

The Director of Public Prosecutions (plaintiff) v Francis Connell (defendant).

Road Traffic Offence - Consultative case stated - Defendant prosecuted for drunk driving - Whether purported arrest valid - Road Traffic Act 1961 (No 24), section 49(8) - Road Traffic Act 1994 (No 7), section 10.

The High Court (before Mr Justice Geoghegan): judgment delivered 16 October 1997.

A GARDA'S intention is only one constitutent element in the validity of an arrest. A garda's arrest without warrant on his suspicion of the suspect committing or having committed an offence is not invalidated where the reason given was that he was being arrested for the offence of drunk driving. 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 detained.

The High Court so held in answering the consultative case stated in the affirmative.

Adrienne Egan BL for the Director of Public Prosecutions: Gregory Murphy SC and Edward S. Walsh BL for the accused.

MR JUSTICE GEOGHEGAN said that this was a consultative case stated sent forward to the High Court by Judge Fahy, a judge of the District Court. The case stated arose out a a prosecution under the 1961 Act as amended by the 1994 Act. There was evidence given by the prosecuting sergeant of the Garda Siochana of a purported statutory arrest but the purported citation of the relevant statutory provision could not in fact have been correct. Under prompting from the superintendent who was conducting the actual prosecution, the sergeant purported to adopted the statutory citation which would be relevant and appropriate if in fact that was the basis of the arrest. Strident objection was taken by the solicitor for the defendant to what he saw has an attempt by the superintendent to lead the sergeant into altering his evidence so as to suit the prosecution. Ultimately, the district judge had requested the determination by the High Court of the following two questions:

(1) Whether the arrest, as made by Sergeant Patrick Connolly, in purported reliance on the provision of section 49(8) of the Road Traffic Act 1961, was a valid arrest.

(2) In the event that the arrest was invalid, was the State precluded from relying upon any subsequent evidence obtained in consequence of such invalid arrest?

Mr Justice Geoghegan said that he had already given an oral judgment in the instant case in which he held that the first question should be answered in the affirmative and that the second question as a consequence did not arise. To his surprise, counsel for the defendant then suggested to him that his answer to the first question did not necessarily mean that he was holding that the arrest was an arrest under section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act in that it might mean merely some kind of valid common law arrest. The significance of this distinction was that even if the arrest was a valid arrest but was not an arrest under section 49(8), the subsequent steps would be invalid because their validity was dependent upon an arrest duly made under section 49(8).

In order to clear up any confusion Mr Justice Geoghegan then decided, having heard submissions from counsel on both sides, that he would prepare and deliver a written judgment. Shortly after that, counsel for the defendant became indisposed and he therefore postponed giving final judgment until now.

The case stated that Sergeant Patrick Connolly, a member of the Garda Siochana and stationed at Roscommon, gave evidence that, at approximately 2.35 a.m. on 24 April 1995 while accompanied by Garda Connolly and Garda Martin, both of Roscommon Garda Station, was performing a checkpoint at a location known as "Keane's Roundabout", at Clooneybeirne, Roscommon, a public place. A motor car approached the roundabout along the Mart Road and when about 100 yards from the check-point, the vehicle was driven into its left hand side of the road and stopped. Sergeant Patrick Connolly proceeded to approach the car, the registration number of which was 965 BZL. There was only one person in it, namely the driver, with whom the sergeant spoke and who gave his name as Francis Connell of Cornakelly, Moyne, County Longford. Sergeant Connolly spoke to the person and inquired as to why he had stopped his vehicle to which the reply was that he wished to eat his chips.

Sergeant Connolly stated, from his observation and having spoken to Mr Connell, his face was red and flushed and there was a strong smell of intoxicating liquor from his breath. Sergeant Connolly stated that he had formed the opinion that Mr Connell had consumed intoxicating liquor and he required him to provide a specimen of his breath. Sergeant Connolly stated that, in the presence of Mr Connell, he assembled an apparatus for indicating the presence of alcohol in the breath and Mr Connell gave a sample which was positive. The time of the test was 2.45 a.m. on 24 April 1995 and Sergeant Connolly then stated that he formed the opinion that Mr Francis Connell had committed an offence under section 49 of the 1961/1994 Act.

Sergeant Connolly then stated that he arrested Mr Connell under Section 49(8) of the 1994 Act at 2.50 a.m. on 24 April 1995, for an offence contrary to section 49(2) or of section 49(3) at Clooneybeirne, Roscommon. Superintendent Weldon immediately asked Sergeant Connolly if he had arrested Francis Connell under section 49(8) of the Road Traffic Act 1961 as inserted by the Road Traffic Act 1994. Sergeant Connolly replied "yes". Mr Quinn, solicitor for the defendant objected at this stage and stated that the superintendent could not lead his own witness. Superintendent Weldon replied that he was only attempting to clarify the evidence given by Sergeant Connolly. Superintendent Weldon pointed out to the court that section 10 of the Road Traffic Act 1994 had inserted a new section 49 in the Road Traffic Act 1961 and that there was, in fact, no section 49(8) of the Road Traffic Act 1994. Sergeant Connolly stated in evidence that he informed Francis Connell in layman's language that he was being arrested for drunk-driving and he proceeded to place Francis Connell in the patrol car. Mr Justice Geoghegan said that the case stated went on to set out the normal evidence of the medical procedures etc, but at the end of the evidence Mr Quinn submitted that the sergeant had in his evidence stated that the arrest was made pursuant to section 49(8) of the 1994 Act and that no such power of arrest was provided under such section (in fact section 49 of the 1994 Act only deals with "minor and consequential amendments"). Mr Quinn went on to submit that the arrest being in his submission invalid, all subsequent evidence which derived from the arrest was invalid. Superintendent Weldon in reply submitted that there had been a proper arrest by Sergeant Connolly and in effect that the case had been properly moved. The district judge observed that in light of the direct evidence as given by Sergeant Connolly in which he had stated that he had arrested the defendant under section 49(8) of the 1994 Act there was no such provision under such Act granting a power of arrest and she was concerned as to whether or not this invalidated the arrest and in such circumstances had stated a consultative case stated for the High Court.

Mr Justice Geoghegan drew an inference that the learned district court judge was not accepting the evidence given by way of correction or at least for the purposes of the case stated was not doing so and was posing the questions to the High Court on the basis that the evidence was that the sergeant had arrested the defendant under section 49(8) of the 1994 Act.

Mr Justice Geoghegan said that a judge at all times takes judicial notice of the law and in his opinion there was only one inference which a judge could draw from the statutory citation given by the sergeant. It was perfectly obvious beyond all doubt at all that that the guard was referring to section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act even though he clumsily and indeed incorrectly gave the citation. The district court judge therefore would have had to draw the conclusion that the guard was intending to arrest under section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act.

But that was not the end of the matter, because of course the garda's intention is only one constitutent element in the validity of an arrest. The arrested person must have knowledge of why he was being arrested. On the facts as set out in the case stated, Mr Justice Geoghegan was satisfied that the defendant would have known the reason for his arrest, sufficiently to render the arrest valid. In forming this view he was particularly following the decision of Mr Justice Blayney in DPP v Mooney [1992] 1 IR 458. The point involved in that case was slightly different but the distinction was not in his opinion relevant as basically the principle was the same. In that case it was held that a garda's arrest without warrant under section 49(6) of the 1961 Act as amended, on his suspicion of the suspect committing or having committed an offence under subsections (2) or (3) of the same section, is not invalidated where the reason given was that he was being arrested for the offence of "drunk driving".

The point was taken by counsel for the defence in that case that since that was an offence of ordinary drunk driving under section 49(1) of the 1961 Act, the expression "drunk driving" must be taken as relating exclusively to that offence and could not cover an offence under subsections (2) or (3). The court rejected that submission on the grounds that the expression "drunk driving" was appropriate to any of the three offences under subsections (1), (2) or (3). Indeed Mr Justice Blayney went on to suggest that in view of the fact that the defendant in that case had been required to blow into the breathalyser and the results had been positive, he must have been well aware of why he was being arrested and that therefore it might not have been necessary to give him a reason at all. In expressing this view, the learned High Court judge (as he was then) was following the ruling of the House of Lords in Christie v Leachinsky [1947] AC 573 as set out in the speech of Viscount Simon at page 587 that 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 detained.

Mr Justice Geoghegan said that following Mooney's case he likewise took 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 he agreed with the suggestion of Mr Justice Blayney that having regard to the fact that a breath test was taken and proved positive, it was not even necessary to state a reason. However, a reason which was sufficient was in fact stated. Mr Justice Geoghegan therefore held that the arrest, as made by Sergeant Connolly, was a lawful arrest under section 49(8) of the 1961 Act as inserted by section 10 of the 1994 Act and he answered the first question put by the district judge in the affirmative. That being so, the second question did not arise.

Solicitors: Chief State Solicitor for the Director of Public Prosecutions; John J. Quinn & Co (Longford) for the defendant.