How Section 109 works.

I know what you’re thinking: what on earth is section 109?

Good question.

Section 109 of the Road Traffic Act 1961 obligates motorists to stop their cars when directed to do so by a member of the Gardai.

Now you know.

It wasn’t an obvious title for a blog until I kept encountering it in courts across the country and kept hearing Gardai -even senior Gardai- refer to it incorrectly.

But still I mostly ignored it.

my friend -clearly a member of the Gardai- disagreed.

he said that what I was saying in my video was “wrong”.

let's see.

The final straw was when an individual commented on one of my videos on YouTube.

He stated that what I had said was wrong as the Gardai had a “common law right” to stop vehicles and in any event section 109 of the Road Traffic Act 1961 also gave them this right.

I knew he was a member of the Force.

Undoubtedly somebody trying to burnish his reputation with Garda Management.

I have had quite a few of these little people attack me online before.

To them I suppose I am like a heretic who ought to be burned at the stake.

Curiously when you encourage them to debate the issues with you publicly they rather melt away.

Anyway, back to the basics.

I had stated that the Gardai could not merely stop individual motorists for no reason.

They could pull you over if you had broken the law in some way (driving with no lights on, speeding, dangerous driving etc) but not if they had no reasonable grounds to.

They needed a bona fide reason to stop you i.e. they would have to genuinely believe that you had committed an offence of some sort.

But not for no reason.

But my friend -clearly a member of the Gardai- disagreed.

He said that what I was saying in my video was “wrong”.

Let’s see.

The Common Law.

The Common Law is a collection of unwritten rules and precedents that have been handed down by the courts over the centuries but have not been codified in actual laws.

When laws are codified in writing, they’re known as Statutes.

Much of the laws that govern behaviour in society is created by statute.

The Gardai do have a common law power to stop vehicles but this power is used in certain distinct circumstances.

They can stop motorists at random in order to detect and prevent crime.

This power can be used, for example, to stop cars near pubs to identify drunk drivers or in order to check cars passing through an area where a lot of crime had been committed.

You’ll notice a similarity in both cases: the Gardai are using the common law power to try to prevent serious offences which they know have been taking place.

Another example is where a Guard sets up a checkpoint with a view towards stopping random motorists to check for tax and insurance.

This too is fine.

In both cases the generalised detection and prevention of crime is the goal.

In neither case is the common law power being used to pull over individual motorists on a whim.

That’s the point.

The random checkpoint scenario is fine as nobody in particular is being directed to pull over: the power is being used to ask a lot of motorists to stop.

Nobody is being individually “targeted”.

That’s ok.

But the other scenario, where a Garda might direct somebody to pull over where they have no reasonable ground to believe that they have committed any offence, is problematic.

That’s different.

Statutory law doesn’t cover that.

Back to the common law.

It does.

But there are caveats to this.

While the parameters of the Common Law power of stop aren't clearly defined, it does exist to stop vehicles at random, even where the Garda doesn't believe that the motorist has broken the law.

The Common Law does not support random stops in circumstances where the power to stop is used arbitrarily i.e. where the Garda is stopping motorists on a whim or where they utilise the power to stop people they don't like.

The Common Law does not support this.

So Gardai cannot just drive behind someone and tell them to pull over just because they feel like it.

I’m afraid my Garda critic didn’t seem to know that.

The other thing he didn’t understand is the road traffic act section that he specifically mentioned.

But in the bona fide execution of duties the Gardai can use their common law powers to stop you, even if they have no belief that you're breaking the law.

As long as the stop is a bona fide execution of their duties.

In practice though this almost never happens.

Regardless of what some people believe the vast majority of Gardai do not spend their days stopping people for no reason.

They don't do this because they are simply too busy answering the deluge of calls that come their way every shift.

Section 109 Road Traffic Act, 1961.

This is the section that my Garda critic was talking about when he left what I’m assuming he thought was a winning comment.

Unfortunately he was wrong again.

This section doesn’t give a power to Gardai to stop motorists if they feel like it.

But I can see why some Gardai might think it does.

This is what section 109 says:

“A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of An Garda Siochana”.

To recap: I was saying that Gardai couldn’t just pull people over if they felt like it, my Garda critic was saying that they could.

And in support of that position he quoted section 109 above.

Now read section 109 again. What does it compel?

Motorists to stop when directed to.

What power does it create for Gardai?

None.

My Garda friend thought that it gave Gardai a power to stop vehicles if they felt like it.

He was wrong.

Again.

I’ll explain why.

In 1994 the Supreme Court (no less) stated that section 109 did oblige motorists to stop when requested to do so, but it did not give the Gardai a legal power to request motorists to stop.

In DPP (Stratford) v. Fagan [1994] Mr Justice Blayney conducted a lot of research on the powers of police to direct motorists to stop.

He was especially impressed with the UK cases of Steel v Goacher [1983] and Lodwick v Sanders [1985].

In fact, the reasoning in Goacher was endorsed in Lodwick two years later.

In Lodwick, Mr Justice Webster decided that “the section imposed a duty on the motorist to stop when required to do so by a constable in uniform”.

Webster then became quite specific: just because you’ve been told to stop by a police officer, it didn’t necessarily mean the stop was legal.

“It does not follow” he said “that a constable in uniform must be deemed to have acted lawfully when, for whatever reason, he requires a motorist to stop”.

So why create a piece of legislation that obligated motorists to stop but didn’t give the police a power to stop them?

Chaos was Judge Webster’s answer, or at least an attempt to prevent it.

The police can direct you to stop and you must stop but you’re free to argue the legality of the stop with them.

If the police had to justify every stop to the satisfaction of a motorist, then a motorist, convinced they had done nothing wrong, could simply refuse to stop and drive away.

This would create “a dangerous and chaotic state of affairs” on the roads as there might be legitimate reasons for the police wishing to stop a driver that might not be obvious to that driver at the time.

Once stopped though a motorist would be free to argue why they had been pulled over “as nothing in the wording of the section gives any power to the constable to stop the motorist”

So what is the purpose of the section? It was designed Judge Webster said “to ensure safety and good order rather than confer any specific power on a police constable”.

Since Mr Justice Blayney and his Supreme Court colleagues have endorsed this position, the same situation exists in Ireland.

Since 1994.

****

To recap: section 109 doesn't grant a power to stop vehicles for no cause.

But the common law does, as long as the stop is bona fide and not arbitrary.