A MAN'S arrest for drink driving was unlawful because he was unjustifiably handcuffed under a garda sergeant's own routine policy of handcuffing drink driving suspects, the Supreme Court ruled.
The decision means a certificate showing the man had failed breath tests cannot be used as evidence and he must be acquitted.
He had a reading of 71mg of alcohol per 100ml of breath. He was convicted in the District Court, appealed and the Circuit Court referred the matter to the Supreme Court.
The Circuit Court judge asked the Supreme Court to rule if he was entitled to find the man's handcuffing following arrest was unjustified. This was in circumstances where the arresting officer did not believe the man was likely to resist arrest but was rather implementing his standard personal policy of handcuffing all drink driving suspects.
The judge also asked whether he had correctly found the handcuffing was a conscious and deliberate breach of the man's constitutional rights rendering his arrest and detention unlawful and requiring exclusion of evidence obtained after arrest.
The garda sergeant had said he had a personal policy of handcuffing all persons arrested on suspicion of a drink driving offence because his experience was they might become abusive or try and resist arrest when told of the intention to arrest them.
Two out of three Supreme Court judges yesterday agreed the arrest was unlawful.
In separate judgments, Mr Justice Nial Fennelly and Mr Justice Frank Clarke agreed the handcuffing of the accused was "pre-ordained", involving no evaluation of the circumstances, and was unjustified.
Mr Justice Fennelly found that rendered the arrest unlawful and Mr Justice Adrian Hardiman agreed.
But Mr Justice Clarke disagreed the arrest was unlawful, resulting in a 2/1 ruling in favour of the man.
Mr Justice Fennelly said the power of arrest may only be exercised by a garda or a citizen with the use of such force as is reasonable in the circumstances.
It was for the arresting officer to make that judgment and the law was "realistic" in that regard, appreciating decisions on arrest are often made in circumstances of urgency, danger and violence.
Mr Justice Clarke agreed the man's handcuffing was unjustified but said he considered there was an issue whether an unjustified handcuffing meant this driver was at all times in unlawful custody with the effect his breath specimen evidence must be ruled inadmissible, leading to an acquittal.
In this case, the manner of arrest, rather than the fact of arrest, was unlawful. But he considered the manner of arrest did not affect the lawfulness of the arrest or the custody of the suspect after that.