Illegal to be handcuffed?

godtabh

So unless you are resist arrest its illegal to be handcuffed. Seems ridiculous.

Link

Is there any logic to our legal system?

Pat Mustard

godtabh wrote: »

So unless you are resist arrest its illegal to be handcuffed. Seems ridiculous.

That would be ridiculous.

But it is not the case.

You will see that reference was made to the case of DPP v Cullen:

The present case is, of course, does not involve trespass. To that extent, it is different from Gaffney and McCreesh. However, I believe that the principle established in those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, when it is quite unnecessary to do so.

In the present case, the judge found that it was unnecessary to handcuff the driver. He found that unreasonable force was used, and turning upon that, he found that the arrest was unlawful. Therefore, the case was dismissed.

It is not unlawful to use handcuffs.

It is unlawful to misuse handcuffs.

Green Peter

I guess when a Garda is murdered they'll review it!

foggy_lad

Pat Mustard wrote: »

That would be ridiculous.

But it is not the case.

You will see that reference was made to the case of DPP v Cullen:


In the present case, the judge found that it was unnecessary to handcuff the driver. He found that unreasonable force was used, and turning upon that, he found that the arrest was unlawful. Therefore, the case was dismissed.

It is not unlawful to use handcuffs.

It is unlawful to misuse handcuffs.

Does it not follow that anyone arrested on suspicion of drink driving who is placed in handcuffs despite being cooperative and compliant is entitled to the same consideration(having the charges dismissed) as the defendant in this case and in Cullen v DPP 2014?

hullaballoo

foggy_lad wrote: »

Does it not follow that anyone arrested on suspicion of drink driving who is placed in handcuffs despite being cooperative and compliant is entitled to the same consideration(having the charges dismissed) as the defendant in this case and in Cullen v DPP 2014?

I don't understand that there is any logical nexus between what PM posted and what you say must follow. There is a dearth of logic.

Cullen specifically says that it depends on the circumstances of each individual arrest.

Aint Eazy Being Cheezy

It's small wonder the morale within AGS is through the floor. Now each and every suspect knows that all they need do is remain cooperative until they get into the squad car, no handcuffs will be placed upon them, then they're free to throttle the arresting garda the split second his/her attention is diverted.

I could understand if the gardai were segregated from the back seat by way of a screen, or if the suspect was being transported in the back of a purpose built van with a holding cell, but not in your average family saloon of a squad car.

Little CuChulainn

Pat Mustard wrote: »

That would be ridiculous.

But it is not the case.

You will see that reference was made to the case of DPP v Cullen:


In the present case, the judge found that it was unnecessary to handcuff the driver. He found that unreasonable force was used, and turning upon that, he found that the arrest was unlawful. Therefore, the case was dismissed.

It is not unlawful to use handcuffs.

It is unlawful to misuse handcuffs.

I think you are incorrect. The judge did not find there was no cause to handcuff. That is a decision left to the Garda. The judge found that the Garda did not give the proper consideration before handcuffing.

hullaballoo

Aint Eazy Being Cheezy wrote: »

It's small wonder the morale within AGS is through the floor. Now each and every suspect knows that all they need do is remain cooperative until they get into the squad car, no handcuffs will be placed upon them, then they're free to throttle the arresting garda the split second his/her attention is diverted.

I could understand if the gardai were segregated from the back seat by way of a screen, or if the suspect was being transported in the back of a purpose built van with a holding cell, but not in your average family saloon of a squad car.

Agreed. AGS should have actual police vehicles and not some tin pot yoke piddling about and not in any way fit for purpose.

But that has nothing to do with reasonable force or constitutional rights.

foggy_lad

hullaballoo wrote: »

I don't understand that there is any logical nexus between what PM posted and what you say must follow. There is a dearth of logic.

Cullen specifically says that it depends on the circumstances of each individual arrest.

The Gardai have stated in the recent past while explaining the Claire Daly case that they routinely handcuff people arrested on suspicion regardless of their behaviour, demeanour or whether they expect the person to be troublesome. so the circumstances of each arrest could be said to be decided by the Gardai from the outset.

In DPP v Cullen

The present case is, of course, does not involve trespass. To that extent, it is different from Gaffney and McCreesh. However, I believe that the principle established in those cases is relevant. The lawfulness of the arrest is contested here because, in effect, the Garda officer in charge applied handcuffs, not because he believed them to be necessary to restrain or control the particular suspect, but because he had a general policy of always placing handcuffs on persons he was arresting on suspicion of driving under the influence of alcohol. In my view, it is unlawful to place handcuffs on suspects who are being arrested without giving any consideration to the context and in particular to the behaviour and demeanour of the individual being arrested. It is unlawful because, as a matter of principle, the police must use only such force as is reasonable in the circumstances: I emphasise, of course, that it is the police officer who must make that judgement. In the present case, the evidence suggests that the officer in question abdicated any such responsibility. It follows that suspected persons are automatically subjected to force accompanying their arrest. It follows, in turn, that handcuffs will, in some cases, of which the present would appear to be one, when it is quite unnecessary to do so.

By "pre-judging" all arrested persons by placing them in handcuffs are they not acting unlawfully by using more force than is necessary or reasonable in the same way that the police in the USA have a habit of shooting black males because they fear what might happen rather than what will happen?

Cullen states specifically that it depends on the circumstances of each individual arrest but the Gardai routinely ignore those circumstances in favour of handcuffing reasonably compliant and cooperative suspects which is unawful.


(IANAL so my language will not be as legalistic as many in Legal Discussion)

Little CuChulainn

hullaballoo wrote: »

Agreed. AGS should have actual police vehicles and not some tin pot yoke piddling about and not in any way fit for purpose.

But that has nothing to do with reasonable force or constitutional rights.

There is an issue aside from force though. A person arrested for drink driving must be unable to place anything in their mouth, including their fingers as ingesting something or vomiting can affect the result. I'm not sure if this was ever brought up in the original case but it seems a massive oversight.

jenny smith

Aint Eazy Being Cheezy wrote: »

It's small wonder the morale within AGS is through the floor. Now each and every suspect knows that all they need do is remain cooperative until they get into the squad car, no handcuffs will be placed upon them, then they're free to throttle the arresting garda the split second his/her attention is diverted.

I could understand if the gardai were segregated from the back seat by way of a screen, or if the suspect was being transported in the back of a purpose built van with a holding cell, but not in your average family saloon of a squad car.

Not every arrested person would do that. Some go quietly and do not resist or abuse the garda so there is no need to handcuff them. The garda should have good idea from his attitude and in this case the man seems to have complied. It is not the arrested persons fault they do not have proper vehicles

foggy_lad

Little CuChulainn wrote: »

I think you are incorrect. The judge did not find there was no cause to handcuff. That is a decision left to the Garda. The judge found that the Garda did not give the proper consideration before handcuffing.

I read it as the Gardai should not handcuff people based on what they "might" do especially if they are well behaved cooperative and compliant and show no signs and have no history of aggression or violence. If someone is known to be violent(recorded on Pulse system) then handcuffing them is the right thing to do even if they are fully compliant.

Little CuChulainn

foggy_lad wrote: »

I read it as the Gardai should not handcuff people based on what they "might" do especially if they are well behaved cooperative and compliant and show no signs and have no history of aggression or violence. If someone is known to be violent(recorded on Pulse system) then handcuffing them is the right thing to do even if they are fully compliant.

You can handcuff based on what might happen but your assessment must be based solely on the individual in question. If your reason for handcuffing is that sometimes people act up then your assessment is based on a general possibility rather than the specific individual.

seamus

I understand the frustration of AGS in this regard, but there has to be balance. Someone who is under arrest has not been tried or convicted, so cuffing them "just in case" is the first rung on the same ladder where US cops approach stopped vehicles with weapons drawn, "just in case".

The Garda stated “You always have some level of fear. Most people don’t like being arrested and they have to be handcuffed.”. This shows that he did not give the circumstances any consideration and instead used the handcuffs as a matter of course.

Where someone has simply been arrested and has not proven themselves a danger, there can be no justification for cuffing them.

If they subsequently start messing after being bundled into the car, you pull over, cuff them and continue on your way.

Pat Mustard

foggy_lad wrote: »

Does it not follow that anyone arrested on suspicion of drink driving who is placed in handcuffs despite being cooperative and compliant is entitled to the same consideration(having the charges dismissed) as the defendant in this case and in Cullen v DPP 2014?

The Cullen judgment doesn't say that if someone is cooperative that they shouldn't be handcuffed. However, it says is that the behaviour and demeanour of the individual being arrested must be considered, along with the context.

A person could be cooperative when arrested but there might be other reasons why they should be handcuffed.

Squatter

<<Mod
Rant about Supreme Court deleted. Pls don't post such here again>>

seamus

[QUOTE=Squatter;10+<<Mod deletion[/QUOTE]The rest of us win by having our statutory rights re-asserted in case law.

Unless of course you'd be happy to be cuffed without any cause or discussion if you were arrested?

And the "it wouldn't happen to me" argument doesn't apply. There are many reasons why any of us may be arrested. Would you rather that you walked out of your house and into a Garda car, or that your neighbours saw you handcuffed behind your back and "assisted" into the back seat?

Squatter

seamus wrote: »

The rest of us win by having our statutory rights re-asserted in case law.

Unless of course you'd be happy to be cuffed without any cause or discussion if you were arrested?

And the "it wouldn't happen to me" argument doesn't apply. There are many reasons why any of us may be arrested ...... blah blah blah

Yee haw! So jolly old Judge Zaidan has re-asserted my rights. I'm off to the offie to buy a bottle of champers to celebrate!

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

dermot65

Are gardai mentioned to have a crystal ball, nobody can say how a arrested person will respond after arrest. For their own safety and others, they should be handcuffed

johnnyskeleton

Squatter wrote: »

Yee haw! So jolly old Judge Zaidan has re-asserted my rights. I'm off to the offie to buy a bottle of champers to celebrate!

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

Are you suggesting that we get rid of the courts so and allow the Gardai to arrest and imprison anyone they believe to be a bad egg without trial?

Because if you are going to posit an extreme scenario, you must be aware of the other extreme and then you need to pick a point in between these two which you are comfortable with.

dermot65 wrote: »

Are gardai mentioned to have a crystal ball, nobody can say how a arrested person will respond after arrest. For their own safety and others, they should be handcuffed

If a law was passed saying Gardai should routinely handcuff anyone arrested, that would solve the issue. So why don't you campaign for that change in the law?

foggy_lad

dermot65 wrote: »

Are gardai mentioned to have a crystal ball, nobody can say how a arrested person will respond after arrest. For their own safety and others, they should be handcuffed

Surely if someone is drunk and unsteady on their feet being handcuffed would pose a greater threat to their health with the risk of them falling over because they are unable to steady themselves?

Gardai are meant to use their heads and make decisions based on what they see before them rather than on what generally might happen. and arrested persons will usually act the same after arrest or become quieter and more compliant.

we can not have a situation where people are denied rights because of what they "might" do based on a Garda's fear of "something happening".

seamus

Squatter wrote: »

Yee haw! So jolly old Judge Zaidan has re-asserted my rights. I'm off to the offie to buy a bottle of champers to celebrate!

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

I'm not sure why you think handcuffing people will result in less drink-driving.

Squatter

seamus wrote: »

I'm not sure why you think handcuffing people will result in less drink-driving.

<<Mod. Offensive remark deleted

ArmaniJeanss

Squatter wrote: »

Yee haw! So jolly old Judge Zaidan has re-asserted my rights. I'm off to the offie to buy a bottle of champers to celebrate!

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

In fairness to JZ all he has asserted is what the law currently says, his own personal opinion may be the exact opposite of this. So attaching an element of blame to him (which 'jolly old judge zaidan' does) is unfair.

Pat Mustard

Squatter wrote: »

Bravo! It requires a particularly talented, not to say onanistical spin-master to distort the thrust of my post so superbly. So pat yourself on the back, smile smugly and give yourself a smartie!

Moderator:

Please do not post like that in this forum.

Please do not reply to this post on the thread.

tipptom

Wonder how would JZ have handled the case had it been Claire Dalys case before him with the Gardai been in mortal fear of the whole 7 stone bulk of her launching herself at Garda?

nhunter100

Squatter wrote:

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

Did you post this through a medium so?

tipptom

Squatter wrote: »

Yee haw! So jolly old Judge Zaidan has re-asserted my rights. I'm off to the offie to buy a bottle of champers to celebrate!

Bad news: I've just been mowed down by a drunken driver as I headed down the road to the offie. But at least I know that I won't be handcuffed in the hearse.

Your a little confused.
The case is about handcuffing the Drunk Driver not the champers bottle waving hearse riding victim.

Carawaystick

The blood alcohol limits for specified drivers is 20mg/100ml which is low. Low enough that someone twice the limit could not be described a drunk, so the notion of everybody arrested for drink driving is three sheets to the wind is well wide of the mark.

Then you've people arrested by consent after making an arrangement to meet gardaí
It's likely they will not need to be handcuffed.

Pat Mustard

Mod:

Off topic posts have been deleted.

hullaballoo

Moderator: Can we please not refer to a Judge of the District Court as JZ, thanks.

Grolschevik

hullaballoo wrote:

Moderator: Can we please not refer to a Judge of the District Court as JZ, thanks.

I only got that once you said it!

mynamejeff

seamus wrote: »

I understand the frustration of AGS in this regard, but there has to be balance. Someone who is under arrest has not been tried or convicted, so cuffing them "just in case" is the first rung on the same ladder where US cops approach stopped vehicles with weapons drawn, "just in case".

The Garda stated “You always have some level of fear. Most people don’t like being arrested and they have to be handcuffed.”. This shows that he did not give the circumstances any consideration and instead used the handcuffs as a matter of course.

Where someone has simply been arrested and has not proven themselves a danger, there can be no justification for cuffing them.

If they subsequently start messing after being bundled into the car, you pull over, cuff them and continue on your way.

So your on your own(very common outside of Dublin) and arrest some one for drink driving . stick him in the back a patrol car and head for station , he grabs your from behind on the motorway and starts to choke you .

blinded and getting kicked in the back you calmly pull over and ask him to please stop so you may handcuff him ?

assuming you a 5'2 female and the drink driver is a 6'2 18 stone man who has 8 pints and 5 whiskeys on board as well as some coke.

its a laughable situation really

Omy

mynamejeff wrote: »

So your on your own(very common outside of Dublin) and arrest some one for drink driving . stick him in the back a patrol car and head for station , he grabs your from behind on the motorway and starts to choke you .

blinded and getting kicked in the back you calmly pull over and ask him to please stop so you may handcuff him ?

assuming you a 5'2 female and the drink driver is a 6'2 18 stone man who has 8 pints and 5 whiskeys on board as well as some coke.

its a laughable situation really

Can you link to any reports of a person arrested for drink driving grabbing a Garda from behind while driving!

cursai

Omy wrote: »

Can you link to any reports of a person arrested for drink driving grabbing a Garda from behind while driving!

A link to prove an entirely believable scenario????? People are spoiled with 'link' nowadays. They don't even have to use their imagination or common sense.....I blame X factor.

nuac

Omy wrote: »

Can you link to any reports of a person arrested for drink driving grabbing a Garda from behind while driving!

No links, but I have often heard evidence in courts of unruly behaviour by those with drink taken.

imho handcuffing is a reasonable precaution

Omy

cursai wrote: »

A link to prove an entirely believable scenario????? People are spoiled with 'link' nowadays. They don't even have to use their imagination or common sense.....I blame X factor.

It's not believable in that I have never heard of it happening in Ireland by your logic as a person might resist arrest a Garda giving a few slaps just in case is OK.

Omy

nuac wrote: »

No links, but I have often heard evidence in courts of unruly behaviour by those with drink taken.

imho handcuffing is a reasonable precaution

And under the case in OP such person can be lawfully restrained. The only thing the case said is there can not be a policy to restrain every arrested person.

seamus

mynamejeff wrote: »

So your on your own(very common outside of Dublin) and arrest some one for drink driving . stick him in the back a patrol car and head for station , he grabs your from behind on the motorway and starts to choke you .

blinded and getting kicked in the back you calmly pull over and ask him to please stop so you may handcuff him ?

assuming you a 5'2 female and the drink driver is a 6'2 18 stone man who has 8 pints and 5 whiskeys on board as well as some coke.

its a laughable situation really

You can make up all the extreme scenarios you like.

Doesn't change the fact that the problem here is that Garda vehicles are inadequate for purpose, not that individuals have a right to be arrested without being indiscriminately restrained.

Spend a bit of cash kitting out the Gardai and you don't have to trample on peoples' rights. Simple.

You don't really explain in your scenario why your giant coke head would wait until they're doing 120km/h on the motorway before attacking the driver.
Or why she wouldn't call for assistance instead?
Or the fact that given the circumstances, using cuffs might in fact be warranted, and therefore protected by law.

What-if scenarios don't prove anything.

mynamejeff

seamus wrote: »

You can make up all the extreme scenarios you like.

Doesn't change the fact that the problem here is that Garda vehicles are inadequate for purpose, not that individuals have a right to be arrested without being indiscriminately restrained.

Spend a bit of cash kitting out the Gardai and you don't have to trample on peoples' rights. Simple.

You don't really explain in your scenario why your giant coke head would wait until they're doing 120km/h on the motorway before attacking the driver.
Or why she wouldn't call for assistance instead?
Or the fact that given the circumstances, using cuffs might in fact be warranted, and therefore protected by law.

What-if scenarios don't prove anything.

Hardly extreme now is it ?
Yes garda vehicle arnt suited to purpose but does that mean that gardai should expose them selfs to unnecessary risks (or do you think its a acceptable risk ?)

every spent any time with intoxicated people ? some one one cocaine or other drugs ? they tend not to act predictable in general .

Most traffic gardai work alone or any garda attached to a smaller station there are many circumstances where assistance would not be available.

would you search some one you had arrested for drink driving and placed in the back of a car unrestrained ?
what powers of search is there ?

sorry i ve no link for you but yes i do know od one incident where a unrestrained female arrested for drink driving who had been cooperative became violent in the back of the car and resulted in a crash

Omy

mynamejeff wrote: »

Hardly extreme now is it ?
Yes garda vehicle arnt suited to purpose but does that mean that gardai should expose them selfs to unnecessary risks (or do you think its a acceptable risk ?)

every spent any time with intoxicated people ? some one one cocaine or other drugs ? they tend not to act predictable in general .

Most traffic gardai work alone or any garda attached to a smaller station there are many circumstances where assistance would not be available.

would you search some one you had arrested for drink driving and placed in the back of a car unrestrained ?
what powers of search is there ?

sorry i ve no link for you but yes i do know od one incident where a unrestrained female arrested for drink driving who had been cooperative became violent in the back of the car and resulted in a crash

If a Garda gives evidence that he was worried he can restrain for any reason. What a Garda can not do is have a policy based on nothing more than it's a policy. So if a Garda is alone and says based on all the facts of arrest he wanted to restrain then Garda can do so.

Pat Mustard

Article which mentions a brutal assault on a Garda, from the back of a squad car:

http://www.thejournal.ie/garda-assaults-2-2711881-Apr2016/

tipptom

Pat Mustard wrote: »

Article which mentions a brutal assault on a Garda, from the back of a squad car:

http://www.thejournal.ie/garda-assaults-2-2711881-Apr2016/

Good trawl back to the 80s,think the jam were at no 1.

foggy_lad

Pat Mustard wrote: »

Article which mentions a brutal assault on a Garda, from the back of a squad car:

http://www.thejournal.ie/garda-assaults-2-2711881-Apr2016/

That suspect was taken from a scene which was described by Gardai as a full scale riot so should have been in cuffs immediately, they had probably arrested so many they ran out of handcuffs?

Arresting someone who is compliant and cooperative and shows no signs of violence or strange or suspicious behaviour and who is not being arrested in connection with any violence or aggressive incident is a different kettle of fish.

tipptom

Lets handcuff them all because there is obviously a massive crises on our hands.
Lets handcuff the likes of Clare Daly for being silly and trying to go up a one way street.


Lets create a them and us situation like America because that's just worked just fine.

the issue here is not the fairly reasonable judgement, it's the invalidation of the arrest

Omy

foggy_lad wrote: »

That suspect was taken from a scene which was described by Gardai as a full scale riot so should have been in cuffs immediately, they had probably arrested so many they ran out of handcuffs?

Arresting someone who is compliant and cooperative and shows no signs of violence or strange or suspicious behaviour and who is not being arrested in connection with any violence or aggressive incident is a different kettle of fish.

My reading of the report the arrested person was in cuffs and he used his feet to attack the Garda.

Pat Mustard

foggy_lad wrote: »

That suspect was taken from a scene which was described by Gardai as a full scale riot so should have been in cuffs immediately, they had probably arrested so many they ran out of handcuffs?

It isn't suggested that he was not handcuffed. I assume from the article and the nature of the attack that the attacker had been handcuffed.

The article is an example of an arrested person attacking from the back seat of a Garda car.

I accept that attacks from the rear of squad cars may not happen very often. I do not disagree with the Cullen judgment.

However, I understand the Garda concern about the possibility of attack from the rear of the car.

I suppose that the installation of grills or screens in the cars would be a sensible precaution, as suggested by Seamus.

foggy_lad

@Pat Mustard Yes there is no suggestion that the suspect was not handcuffed and I accept that sometimes even cuffed suspects will be able to cause serious injury from the rear seat of a patrol vehicle.

The problem with grills and screens is that the space in the back is seriously limited for someone of even average size and stature who may already have their hands cuffed behind their back and trying to squeeze them into a small saloon car with both headroom and legroom further restricted with a screen would be seen as punitive and probably a danger to the persons safety and comfort. The UK police say about cuffs that they are not built to be comfortable and that is perfectly acceptable for someone convicted of a crime but is never an acceptable way to treat any suspect unless we want to change that whole "Innocent until proven Guilty" thing.

Until we have proper purpose built patrol cars with proper accommodation for suspects and convicts alike the Gardai will just have to stop routinely handcuffing people arrested with no hint or history of violence or aggression.

Pat Mustard

foggy_lad wrote: »

The problem with grills and screens is that the space in the back is seriously limited for someone of even average size and stature who may already have their hands cuffed behind their back and trying to squeeze them into a small saloon car with both headroom and legroom further restricted with a screen would be seen as punitive and probably a danger to the persons safety and comfort.

Perhaps I am wrong but my experience of these screens has been in taxis in the UK and perhaps the USA, iirc. I don't recall any issue with headroom in the back of the relevant cars (nor do I see how one could arise?) and I don't recall an issue with legroom. May I ask if you are speaking from experience?

seamus

Pat Mustard wrote: »

Perhaps I am wrong but my experience of these screens has been in taxis in the UK and perhaps the USA, iirc. I don't recall any issue with headroom in the back of the relevant cars (nor do I see how one could arise?) and I don't recall an issue with legroom. May I ask if you are speaking from experience?

I expect the real kit is probably a bit more robust than a perspex screen. Those things would come down with a good kick. So the proper grills probably require a couple of inches extra for fitting to the vehicle frame, etc.

Even so, the Gardai aren't driving around in 1980s Opel Astras or Fiat Puntos anymore. I'd be surprised if there was a significant comfort issue in a modern car.