Judge's dismissal of drink driving charge was correct

The dismissal of a case against a man charged with drink driving was correct as the defendant was not validly arrested, the High Court has found. Ms Justice McGuinness decided yesterday that it was not simply sufficient to take a person into custody. A form of words indicating a person was under restraint was necessary to complete a valid arrest.

She was delivering a reserved judgment on a case stated by the DPP in relation to the decision of District Judge William Hartnett to dismiss a charge of alleged drink driving on September 1st 1997 against Mr Michael McCormack, Minnauns, Callan, Co Kilkenny. At the close of the case, Judge Hartnett directed that the prosecution had failed to establish a prima-facie case. He took the view the arrest of Mr McCormack was invalid as the arresting garda had not expressly told the defendant either the section under which he was being arrested or the reason for the arrest.

The DPP appealed that decision by way of case stated to the High Court. Ms Justice McGuinness said there was no doubt that in the circumstances the garda who stopped Mr McCormack at 12.45 a.m. on September 1st 1997, at Clashacollaire, Callan, was correct. The garda had noticed his speech was slurred and there was a strong smell of alcohol from his breath. The garda had correctly required him to provide a breath specimen which test proved positive.

None of those facts was in dispute, Ms Justice McGuinness said. The reason for his arrest must have been abundantly clear to the defendant, she said. In that regard, she considered the answer to the question posed by the District Judge - whether he was correct in dismissing the charge because Mr McCormack was not informed that he was being arrested under any or any particular provisions of the Road Traffic Acts, either in technical or layman's language - was "No".

However, both sides had also agreed the High Court could determine a question whether the judge was correct in dismissing the charge against the defendant where he had found as a fact that the garda had not informed Mr McCormack he was being arrested.

Ms Justice McGuinness held the answer to that second question was "Yes".

Ms Justice McGuinness held the District Judge was correct in dismissing the charge against Mr McCormack on the grounds he was not validly arrested but agreed to put a stay on her decision in the event of an appeal.