The power of arrest may only be exercised with such force as is reasonable in the circumstances

The Supreme Court has ruled an arrest for drink driving unlawful because the accused was unjustifiably handcuffed on foot of a personal routine of a Garda Sergeant.

Peter Cullen was stopped in Dublin 15 in September 2007 by Sergeant Moyles after being spotted driving erratically. While speaking to Mr. Cullen, Sergeant Moyles formed the opinion that he was intoxicated. Sergeant Moyles had Mr. Cullen provide a breath specimen, which he failed.

On cross examination in Dublin Circuit Court Sergeant Moyles stated that Mr. Cullen was cooperative at all times prior and subsequent to his arrest. Sergeant Moyles also stated that Mr. Cullen had not used threatening force in order to avoid arrest. Nor was there anything in the conduct of Mr. Cullen which might lead Sergeant Moyles to suspect that he might resist arrest. Sergeant Moyles also stated that it was his personal policy to handcuff any person arrested for drink driving, irrespective of the circumstances.

At the conclusion of the Prosecution's case, Counsel for Mr. Cullen applied for a direction on the basis that Sergeant Moyles had no reasonable grounds for the handcuffing. Counsel submitted that such restraint was unjustified and amounted to a conscious, deliberate and unlawful use of force, rendering Mr. Cullen's detention unlawful. Counsel also submitted that the exclusionary rule obligated a trial judge, in cases where a conscious breach of constitutional rights occurs, to exclude the admissibility of evidence except where the prosecution establish some extraordinary and excusing circumstance justifying the actions of Gardaí.

While Judge Terence O'Sullivan accepted that the Prosecution had failed to prove that handcuffing Mr. Cullen was lawful, proportionate or justified and, therefore, Sergeant Moyles acted lawfully, he referred two questions to the Supreme Court.

The first question posed was whether Judge O'Sullivan was entitled to hold that the handcuffing of Mr. Cullen, following arrest, was unjustified because Sergeant Moyles did not believe he was likely to resist arrest or attempt to escape from lawful custody.

The second question hindered on the first question being answered in the affirmative. The question posed was whether Judge O'Sullivan was correct to conclude that the handcuffing of Mr. Cullen was a conscious and deliberate breach of his constitutional rights.

Before answering the questions posed by Judge O'Sullivan, Mr. Justice Nial Fennelly set out the principles on: the use of reasonable force when making an arrest; the judgement of the Gardaí as to the reasonable force; the application of handcuffs; and, more general observations on lawful arrest and detention. Mr. Justice Fennelly also noted the courts are slow to review the operational decisions of individual Gardaí.

On the use of reasonable force when making an arrest, Mr. Justice Fennelly held that:

[...] the power of arrest, whether exercised by a police officer or by a citizen may be exercised and may only be exercised with the use of such force as is reasonable in the circumstances.

However Mr. Justice Fennelly concluded that what force is reasonable in the circumstances is for the individual Garda to judge, and that the law allows for a generous measure of judgement in this regard:

An error of judgement by an officer in applying force where he genuinely believes to be necessary will not either render the arrest invalid or expose the officer to legal remedy, whether criminal or civil. 

On the application of handcuffs, Mr. Justice Fennelly set out four principles.

One, that a Garda is fully entitled, and may be obliged, to apply handcuffs to an arrested person, where he or she believes that it is necessary to do so in the particular case. Two, the decision to apply handcuffs must be left to the individual Garda dependant on his own appreciation of the requirements of the individual case. Three, the factors to be taken in account are: the nature of the offence, the prevailing circumstances, and the personality and character of the individual to be arrested. Four, that a realistic latitude is shown by the law to Gardaí in this regard.

Mr. Justice Fennelly also set out three principles on lawful arrest and detention.

One, that an arrest is a pre-requisite for the authority to demand that a suspect provide blood, urine or breath specimens. Two, that an arrest may be invalid, if in the absence of lawful authority or consent of the owner, the arrest was carried out on private property. Three, detention that was originally lawful, can become unlawful because the suspect was held in detention without justification.

Thus, Mr. Justice Fennelly answered the first question in the affirmative because Sergeant Moyles failed to give consideration to the context, behaviour and demeanour of Mr. Cullen.

While on the second question Mr. Justice Fennelly deemed the arrest unlawful, but found it unnecessary to refer to the breach of constitutional rights or the exclusionary rule. 

Obligation on banks to assess creditworthiness of borrowers

In 2012 the High Court awarded KBC Bank €17,694,130 in damages against Dublin based law firm BCM Hanby Wallace (now Byrne Wallace) over failures to ensure the bank had security for the loans.

The Supreme Court has directed the High Court to reconsider findings that there was no contributory negligence by KBC Bank in how the bank suffered muti-million euro losses to struck-off solicitor Thomas Byrne and property developer John Kelly.

KBC Bank incurred the losses due to the failure in having security for €25m loans advanced to Mr. Byrne and Mr. Kelly.

The Supreme Court ruling addressed seminal issues relating to the duties of banks to the shareholders when advancing loans, including the responsibility to investigate the financial standing of borrowers.

Mr. Justice Brian McGovern in the High Court found the matter was about ‘multiple failures’ repeated across several separate loan transactions. He rejected arguments of contributory negligence by KBC Bank on the grounds that the bank was entitled to rely on assurances from professionals retained by KBC Bank. The Supreme Court ruled Mr. Justice McGovern had erred in how the issue of contributory negligence by KBC Bank was addressed.

Mr. Justice Nial Fennelly said that while BCM Hanby Wallace negligence related to obtaining security for the loans was a direct and proximate cause of the loss, there was an issue as to whether it was the only effective cause of the loss. It was important in this context to distinguish between the two types of contributory negligence alleged against KBC Bank. The first type of contributory negligence is the want of care in making decisions to lend. The second type of contributory negligence is the failing to verify or supervise the solicitors’ performance of their duties.

On the assumption KBC Bank failed to exercise due care in lending, Mr. Justice Fennelly was satisfied KBC Bank was exclusively responsible for those decisions.

Mr. Justice Fennelly found it was not the task of BCM Hanby Wallace to check the financial soundness or reliability of Mr. Byrne and Mr. Kelly. He also found that the High Court erred in finding there was no contributory on grounds of finding the actions of the borrowers were merely an inevitable or necessary cause, and not a proximate cause, of the loss.

Mr. Justice Fennelly noted the effective cause of the loss was the decision to lend to Mr. Byrne and Mr. Kelly, combined with the negligence of BCM Hanby Wallace.

Mr. Justice McGovern remarked that aspects of the loans to Mr. Byrne were "highly questionable". He noted the "somewhat careless" approach of KBC Bank in its actions.

On the second type of contributory negligence, the failure to verify or supervise the solicitors’ performance of their duties, KBC Bank was entitled to rely on the expertise of BCM Hanby Wallace to put in place security. Although it may be argued that the responsibility of KBC Bank in this context was so small it should not be fixed with any responsibility, there is no absolute rule.

Mr. Justice McGovern argued that if evidence showed the errors of BCM Hanby Wallace were so obviously the errors could not have been overlooked, there was a fault on the part of KBC Bank and it was open to BCM Bank Wallace to argue the obligations KBC Bank had in accordance with European Union Regulations on Licensing and Supervision of Credit Institutions. Also see 2009 and 2013.

The European Union Regulations requires the banks to manage business in accordance with ‘sound administrative and accounting principles’. The banks are also required to put in place and maintain internal control and reporting arrangement to ensure  business in managed.

Mr. Justice Fennelly directed that Byrne Wallace appeal  be allowed on the issue of contributory negligence and the matter should be reconsidered by the High Court.   

Reasons must be given for administrative decisions

The Supreme Court has rejected the decision of the Minister for Justice not to grant a certificate of naturalisation for Irish citizenship to a Syrian national. The five judge Court held that the Minister was obliged to provide reasons for his refusal, but failed to do so.

Ruling in favour of Ghandi Mallak, Mr. Justice Nial Fennelly observed that the developing law of Irish courts provides "compelling evidence" that it must be unusual for a decision maker to be allowed to refuse to give reasons.

Mr. Justice Fennelly also observed that law serves to provide a remedy where it can be shown that fairness is lacking.

Indeed, administrative decisions are not excluded from review and any opinion formed by the Minister must be held in good faith, factually sustainable and reasonable.

Mr. Mallak and his wife arrived in Ireland in 2002, obtaining asylum in 2003, later applying for a certificate of naturalisation as part of the citizenship process.

However, the first application was rejected because Mr. Mallak was not residing in Ireland long enough. He applied again in December 2005, only to be rejected in November 2008. The Minister did not disclose the reasons.

Documents relating to his case were sought under the Freedom of Information Act, including the reasons for rejecting the application.

Mr. Mallak was informed by the Office of the Information Commissioner that the refusal of the Minister to give reasons was in accordance with section 18 of the Freedom of Information Act.

Additional requests to the Department of Justice disclosed material Mr. Mallak claims he was previously unaware of and, as a result, had no opportunity to meet any adverse findings.

Later, Mr. Mallak appealed the High Court ruling of 2011 to the Supreme Court where Mr. Justice Fennelly observed that the failure to give reasons means it is not possible for Mr. Mallak to decide whether he has a basis for applying for judicial review of the substance of the decision.

The Supreme Court ruling will have implications for other administrative decisions where it can be shown that fairness is lacking.