Case highlighted circumstances where use of handcuffs may be unlawful.
A WOMAN WHO CRASHED after drinking two glasses of wine and a bottle of champagne, had a drink driving prosecution dismissed after the court ruled that Gardai had used handcuffs unlawfully.
The case came before Judge Marian O’ Leary at Cork District Court on 15 January.
GARDA SMITH GAVE evidence that she was working with a male colleague on 25 April 2022. At 10:30pm she received a call “of an alleged drink driver which collided with a vehicle that was stationary”.
The accident had occurred in the Dublin Hill area of the city.
When the Gardai arrived
Miss Horgan heard Miss CO say,
“I’m fucked, I’m dead” and
“I’m done for”.
When she got to the scene, she discovered a vehicle “badly damaged”. One of the vehicles “had damage to the rear side wheel and bumper”. The other vehicle was in the middle of the road “causing obstruction to other road users.
There was extensive damage to the front left wheel and bumper”.
Nobody was injured.
She spoke to a woman at the scene. “I approached the female and asked her was she involved in the accident. She stated that she was driving the vehicle and collided with the other vehicle…and did not know what happened”.
The woman identified herself as Miss CO.
Garda Smith stated that she “could get a strong smell of alcohol from her breath, her eyes were glassy and her speech was slurred”.
At 10:40pm she arrested Miss CO on suspicion of drink driving and advised her of this.
She said that “I was informed by a witness that she [Miss CO] had attempted to flee”. She said that Miss CO “kept moving backwards in small steps, she was reluctant and distant with me”.
She said that due to Miss CO’s agitated and ‘reluctant’ demeanour she decided to “place handcuffs on her to prevent her fleeing the scene and escaping”. She repeated that Miss CO had appeared “agitated and reluctant”.
Miss CO was placed into a patrol van and brought to Mayfield Garda Station. A doctor was called. Miss CO was told that she had to allow the doctor to take a specimen of blood from her, but she could opt for urine if she wished.
She opted for urine and provided a specimen. The specimen was posted to the Medical Bureau of Road Safety.
The reading was 198. The legal limit is 67.
If convicted Miss CO would have been disqualified for 2 years.
IN CROSS EXAMINATION Patrick Horan suggested to Garda Smith that Miss CO had been cooperative. She agreed. He said that there were 4 Gardai at the scene, two males and two females. Garda Smith agreed that this was the case.
He said that “Miss CO describes herself as a 5-foot 2 inch woman who weighs 8 stone. She has a slim, petite frame”.
Garda Smith did not disagree.
He then quoted a passage from Garda Smith’s statement:
“[Miss CO] kept moving backwards in small steps she was reluctant and distant with me. Miss [CO] appeared agitated and was looking away.
I was informed by a witness [Miss] Horgan that [Miss CO] tried to leave the scene before Gardai’s arrival. I handcuffed [Miss CO] to prevent her fleeing the scene for her own safety and for the safety of myself”.
He suggested to Garda Smith that Miss CO did not try to leave the scene while Garda Smith had been there.
Garda Smith agreed that she did not.
He said that Garda Smith arrived at the scene and arrested her at 10:40pm. He asked whether she had made any attempts to flee during all this time. Garda Smith agreed that she did not.
He said that witnesses made statements that the accident happened at about 10:10pm. She was arrested at 10:40pm. During this time, she made no physical attempt to leave the scene. Again, Garda Smith agreed.
the test for applying handcuffs was
reasonableness.
It was not reasonable for handcuffs
to be applied to a cooperative and
compliant female accused
surrounded by four Gardai.
Mr Horan suggested that the reason Garda Smith applied handcuffs was not because of something she had witnessed herself, but because of what a third party, Miss Horgan, had said to her.
Mr Horan asked why handcuffs were applied. Garda Smith stated that once the decision to place handcuffs was made “they (handcuffs) stayed on”.
He referred to the other statements made by witnesses.
He said: “Witnesses say she is a short lady who remained at scene and was alone.”
Garda Smith agreed that Miss CO was alone.
He stated that Garda Smith “was accompanied by a male and female ASU (Armed Support Unit) Garda and another male Garda.”
Garda Smith agreed.
He put it to Garda Smith that despite what she observed at the scene “No witness mentioned that Miss CO was “moving backwards in small steps…appearing agitated…and looking away”.
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Garda H then gave evidence.
She stated that she was a member of the Armed Support Unit. She said that on 25 April 2022 she was “on standard patrol” when she came upon the accident at about 10:30pm. She was accompanied by a male colleague.
She called for units to assist, and Garda Smith and her colleague arrived.
Garda H pointed Miss CO out to Garda Smith. She said that “Miss CO who was standing close by to the vehicle was identified by witnesses at the scene as the driver…and that she hit into a vehicle but she didn’t recall how this had happened”.
Garda H and her colleague were present when Garda Smith later arrested Miss CO.
In cross examination Mr Horan asked Garda H whether Miss CO had been “cooperative, compliant and had answered questions”?
“She stated she had
2 glasses of wine and
a bottle of champagne”.
She agreed that she had.
Miss Drummond, a civilian witness, now gave evidence on behalf of the prosecution.
She said that she remembered that she had collected her daughter and was driving along Dublin Hill. The time was “nearly 10pm”.
She said that she “saw a black car swerving” in front of her. It was headed towards her. She said that she felt there might be an accident and that her “daughter was crying”.
She saw the vehicle swerving and collide with a parked car. She said that she waited until the Gardai arrived.
She heard Miss CO say, “I’m fucked, I’m dead”.
Mr Horan asked Miss Drummond whether Miss CO had attempted to flee the scene.
She said that Miss CO had not.
Last to give evidence on behalf of the prosecution was Miss Horgan. Miss Horgan did not witness the accident, but her partner ran upstairs in her house and told her an accident had just happened. She then ran outside.
Miss Horgan said that she had gone to the scene and spoke to Miss CO. Miss CO admitted to her that she had been drinking. “She stated she had 2 glasses of wine and a bottle of champagne”.
She said that Miss CO kept saying “she had to go and get out of the area.” Miss Horgan told Miss CO that the Gardai had been called and that she could not leave.
When the Gardai arrived Miss Horgan heard Miss CO say, “I’m fucked, I’m dead” and that “I’m done for”.
In cross examination Mr Patrick Horan asked Miss Horgan what time she had come on the scene. Miss Horgan said it was about 10:05pm.
Mr Horan put it to Miss Horgan that Garda H. and her colleague from the Armed Support Unit arrived at 10:30pm and that during all of this time Miss CO made no attempt to move or leave the scene in any way.
Miss Horgan agreed.
He said that Miss Horgan had told Miss CO that she could not leave and that she did not. Miss Horgan agreed.
He referred to her statement. She had stated that when the Gardai arrived Miss CO had said, “I cant leave now”.
Miss Horgan accepted this was true.
She suggested that she stayed at the scene from 10pm to 10:30pm.
Miss Horgan agreed. She also accepted that Miss CO was alone throughout.
Mr Horan suggested that Miss CO was a slim, petite woman of about 5 foot 2 inches in height.
She accepted that this was the case.
The prosecution case was closed at this time.
____________
IN HIS SUBMISSIONS to the court Mr Horan sought a direction to dismiss the drink driving charge against Miss CO.
He said that Miss CO had voluntarily submitted to the arrest and Garda Smith did not suspect that she would resist. The application of force (use of handcuffs) was unlawful, he said.
He said that while the Supreme Court had given Gardai ‘a measure of latitude’ in the use of handcuffs in the case of Pires, Corrigan and Gannon [2019] the test in the application of handcuffs was a subjective one.
He referred to the Supreme Court case of Moyles v Cullen [2014] where Mr Justice Fennelly had stated that there might very well be circumstances where a Garda was “fully entitled to and might well be obliged to apply handcuffs to an arrested person where he or she genuinely believed it was necessary to do so”.
Mr Horan argued that Miss CO’s case was not one of them.
It did not matter that the man on the street felt that the use of handcuffs was unwarranted. As long as the Garda gave evidence that at the time that the handcuffs were applied, they believed that they were reasonably necessary, that was all that mattered.
He said that the Supreme Court were not inclined to “second guess” a Garda who had to use handcuffs.
However, he said the test was one of reasonableness.
While a Garda might subjectively believe that handcuffs were appropriate in the circumstances, this belief had to be a reasonable one based on the “behaviour, demeanour and characteristics of the accused”.
In this case Mr Horan suggested, the witnesses said that Miss CO was a slight woman of slim build who had remained at the scene up until the time she was arrested.
She had not stated any intention to actively leave, and no member of the Gardai had felt that she was about to flee. She was fully cooperative and compliant.
The decision to place handcuffs on Miss CO had been taken only after Garda Smith had been told by Miss Horgan about something that Miss CO had said earlier.
In other words, he said, the decision to place handcuffs on Miss CO was not one independently arrived at by Garda Smith but was rather the result of a conversation she was told about.
Additionally, he said that there was 4 Gardai at the scene, including two male Gardai and that Miss CO was alone.
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Judge O’ Leary agreed with Mr Horan’s submission.
She said that while Garda Smith might have felt that handcuffs were justified in the circumstances, she noted that there had been no evidence of any attempt by Miss CO to flee.
Neither had there been any statement from Miss CO to any Garda at the scene to this effect.
She said that the test for applying handcuffs was reasonableness. It was not reasonable in the circumstances for handcuffs to be applied to a cooperative and compliant female accused surrounded by four Gardai.
She dismissed the drink driving charge.