A Supreme Court judge agreed that a sergeant had no reasonable basis to handcuff Peter Cullen when arresting him on suspicion of drink-driving, but said the unjustified restraint did not make the arrest or his later custody unlawful.
In a judgment delivered on 18 February 2014, Mr Justice Clarke set out his separate view in a case stated concerning Cullen’s prosecution. The source identifies the prosecutor as the Director of Public Prosecutions, at the suit of Sergeant Sean Moyles. The case stated came before the Supreme Court after a trial judge considered whether the handcuffing affected the lawfulness of the arrest and the use of breath-test evidence.
Cullen was arrested after the sergeant formed the opinion needed to arrest him under the Road Traffic Acts. The sergeant had a policy of handcuffing all such suspects, regardless of individual circumstances. Cullen was handcuffed immediately. A subsequent evidential breath test recorded 71ml of alcohol per 100ml of breath, above the permitted amount, Clarke’s judgment said.
Clarke agreed that an arresting officer may have a reasonable margin of judgment when deciding whether handcuffs are necessary, but that this does not justify a blanket policy. He said the trial judge was entitled to find that handcuffing Cullen was unjustified because the sergeant had no basis to believe Cullen was likely to resist arrest or escape.
The judgment distinguished the manner of an arrest from the legal authority to make it. Clarke said the arrest could lawfully have taken place, and that it was the way it was carried out that was unlawful. In his view, the remedy for unjustified handcuffing could include damages for assault, but the conduct did not itself invalidate the arrest or make Cullen’s custody unlawful.
That differed from the conclusion of Justice Fennelly, whose judgment Clarke discussed. Clarke said he would answer the first question in the case stated by holding the handcuffing unjustified. On the second, he would hold that the handcuffing affected the manner of arrest, not the entitlement to arrest or the lawfulness of custody afterwards.
Clarke did not finally decide whether the breath-test certificate could be admitted. He said that question depended on the Supreme Court’s consideration of the exclusionary rule, under which evidence obtained in breach of constitutional rights may be excluded. A seven-judge division was due to consider that rule in another case, and Clarke preferred to defer a final view until after that consideration. The source provides Clarke’s judgment and does not state the court’s final disposition of the case stated or the prosecution.