The Supreme Court dismissed the Director of Public Prosecutions’ appeal in a case stated concerning the arrest of Alan Molloy on his driveway. McCracken J., delivering judgment on 28 February 2003, held that the arrest was unlawful because the Garda’s implied authority to be on the driveway had been withdrawn before Molloy was physically restrained.
The appeal arose after a District Court charge under section 13(3) of the Road Traffic Act 1994 was dismissed. The charge alleged that Molloy refused or failed to comply with a requirement to provide a blood or urine specimen. The District Court ruled that his arrest was unlawful, and the High Court upheld that decision. The stated question was whether the District Judge was correct to dismiss the charge on that ground.
The judgment recounts that a Garda at a checkpoint near Clonee, County Meath, followed a car into the driveway of a house. Molloy was alone in the car. The Garda later formed the opinion that he was incapable of having proper control of a vehicle because of alcohol and told him he was being arrested for drunk driving. Molloy said the arrest was unlawful because the Garda had followed him onto his driveway. He did not submit to being under restraint; he was subsequently handcuffed and taken to Dunboyne Garda Station. He refused to provide a blood or urine sample.
The Court considered earlier decisions concerning Garda entry onto private driveways. In Director of Public Prosecutions v Forbes, the Supreme Court had recognised an implied authority for Gardaí to enter a householder’s forecourt to enforce the law, subject to evidence that the authority had been withdrawn. McCracken J. considered the present case closely comparable to Director of Public Prosecutions v McCreesh, where the driver had not submitted to the Garda’s initial words of arrest.
The Court concluded that Molloy’s words clearly withdrew any implied consent for the Garda to remain on the driveway. By the time the Garda physically restrained him, the Garda was a trespasser and the arrest was unlawful. The Supreme Court dismissed the appeal. It did not determine guilt on the Road Traffic Act charge; the appeal concerned the legal basis for the District Court’s dismissal.