Police handcuffing

Recent Irish case law on police powers to handcuff a suspect on arrest seems to prioritise police convenience over personal rights to bodily integrity and dignity

Handcuffing a person on arrest might be perceived popularly as a regular, and even unremarkable, aspect of police practice. It signifies the reality that the person has been deprived of his or her liberty, and it prevents him from contesting that reality through violence or flight. Equally, however, handcuffing is a humiliating and degrading experience for the handcuffed person, especially when paraded in public view. It must be questioned, therefore, whether the practice is necessary or even lawful in situations where the arrested person is cooperating voluntarily with the police and does not present any objective risk of violence or flight.

Police handcuffing is not directly regulated by statute in either the UK or Ireland. The legal authority for it must be found in the statutory and common law principles governing the use of force to effect an arrest. The basic proposition is that a police officer, when effecting a lawful arrest, can use no more force than is reasonably necessary in the circumstances that the officer genuinely believes to exist at the time. Critically, the officer is treated on the basis of the circumstances he or she genuinely believed to exist (eg. a real risk of flight), even if the officer was mistaken about those circumstances. Nevertheless, the amount of force used by the officer will be assessed against what is reasonable (an objective standard) in the circumstances that the officer genuinely believed to exist (a subjective standard). It is not simply a matter of what force the officer in question genuinely believed to be necessary (a subjective standard) in those circumstances.

Until recently, there has been surprisingly scant judicial authority in the UK and Ireland on the application of these principles specifically to police handcuffing. In the UK, the primary guidance is still little more than a trial judge’s direction to the jury in the nineteenth century case of Leigh v Cole (1853). Interestingly, there has been a sudden burst of interest in the subject in Ireland, with no less than two Supreme Court judgments in the past 4 years. The latest of these was handed down a few weeks ago in the combined cases of DPP v Pires, DPP v Corrigan, DPP v Gannon [2018] IESC 51. For the most part, however, this decision followed the Supreme Court’s own previous decision in the first case; DPP (Moyles) v Cullen [2014] IESC 7.

The Irish cases all concerned the arrest of motorists on suspicion of ‘driving under the influence’. In each case, the motorist cooperated fully with the police and posed no objective risk of flight, resistance or violence. The core legal issue to be determined was whether the handcuffing of a suspect on arrest in such circumstances amounted to the use of unlawful force which invalidated the arrest and subsequent statutory procedure.

In Cullen, the Court proceeded from the premise that the handcuffing was an integral part of the arrest process and entailed the use of force against the person. To be lawful, therefore, it would have to constitute no more force than was reasonably necessary in the circumstances as the arresting officer genuinely believed them to be. In Cullen, the arresting officer applied a consistent policy to handcuff motorists arrested on suspicion of ‘driving under the influence’, irrespective of the circumstances. This policy was based on his experience of arresting such drivers.

The Court held that the application of a general policy to handcuff on arrest, irrespective of the circumstances, was unlawful as it precluded an evaluation of the need for the use of such force in the context of the individual case. In particular, it left no room to take into account the behaviour and demeanour of the individual being arrested, when deciding whether handcuffing was necessary. However, the Court also declared that a police officer:

“..is fully entitled to and may well be obliged to apply handcuffs to an arrested person, where he or she genuinely believes that it is necessary to do so in the particular case. The decision must be left to the individual Garda dependant on his or her own appreciation of the requirements of the individual case.”

The Court went on to say that the law affords the arresting officer a “generous measure of judgment” on whether the use of such force is or is not justified on the facts of any individual case, and that “[a]n error of judgment in using force which he genuinely believes to be necessary will not render the arrest invalid or expose the officer to legal remedy, whether civil or criminal.” It also made it clear that the courts will be slow to review such operational decisions taken by police officers in the course of their duty.

A problem with this, essentially subjective, approach is that it sits uneasily with the requirement that the use of force should be reasonable in the circumstances as the officer believed them to be. It is wholly proper to treat the officer on the basis of the facts he or she honestly believed to exist, even if he or she was mistaken about those facts. It is quite another thing, however, to say that the amount of force used by the officer in responding to those facts is reasonable, simply if the officer genuinely believed that it was reasonable. That would be to deprive the term ‘reasonable’ of any practical meaning in the formulation. Reasonable force would become what the individual police officer subjectively considered to be reasonable in the circumstances, as distinct from the objective standard of what would be considered reasonable in those circumstances. The law should reflect the objective standard in this matter.

The facts and decisions in Pires, Corrigan, Gannon are instructive. The arresting officers in those cases claimed that the handcuffs were necessary for their own safety, the safety of the arrested motorists and/or the safety of other road users. They also acknowledged, however, that the motorists in question were peaceful and cooperative, and that there was nothing in their personal behaviour or demeanour that triggered these risks. In effect, they were risks that might notionally arise in most arrests, and perhaps in all motor arrests. Nevertheless, the Supreme Court applied the essentially subjective approach of Cullen to uphold the legality of the handcuffing in all three cases. It accepted that the officers genuinely believed that the handcuffs were necessary to ensure that the specified risks did not materialise and, as such, their actions were lawful.

It can be argued that the Supreme Court’s approach weighs the balance too heavily in favour of police convenience over personal rights to bodily integrity and dignity. The Court’s essentially subjective approach treats the officers not on the basis of the circumstances they actually believed to exist, but on the basis of eventualities that they imagined could arise in the future, no matter how unlikely given the demeanour of the suspects in question. It is submitted that the Court should be considering only whether the police officers genuinely considered that these arrested persons posed a flight risk or a threat to safety. It should not be enough that the officers were aware as a matter of general experience that, occasionally, a person arrested on suspicion of ‘driving under the influence’ may try to escape or might pose a safety risk to himself or others if not handcuffed.

It may be, of course, that the Cullen approach is confined to the specific context of police handcuffing. Arguably, a case can be made to distinguish it from situations in which significant physical force (which can end up being lethal) is used to effect an arrest or to prevent crime. It would be a grave concern if the lawful use of force in those other arrest situations was determined essentially by the amount of force the officer genuinely believed to be necessary in the circumstances, as distinct from what would be considered reasonable in those circumstances. Given that arrests involving the use of force can result in fatalities, it is submitted that the objective standard plays a vital and necessary role in striking an appropriate balance between the interests of law enforcement and the rights to life and bodily integrity.

Another issue concerns the consequences of the unlawful use of handcuffs (or force) in the course of an arrest. Does it render the arrest itself unlawful or does it merely give rise to a cause of action for damages in trespass to the person? The former can produce some significant knock-on consequences. In the case of ‘driving under the influence’, for example, a valid arrest is a precondition for the lawful taking of a sample from the suspect for the purposes of a criminal prosecution. If the arrest is unlawful because of the unlawful use of handcuffs, there will be no lawful basis for taking the sample. In Ireland, a sample taken in such circumstances will almost certainly be inadmissible in evidence at the trial of the suspect, with the result that the prosecution will fail.

The majority in the Irish Supreme Court in Cullen proceeded on the basis that the handcuffing was an integral part of the arrest. Accordingly, the unlawful use of handcuffs would automatically render the arrest itself unlawful. There is merit in this approach, especially where handcuffing is applied effectively as a constituent part of the process of rendering the liberty of the suspect submissive to the will of the officer. In that sense it can be equated with the requirement to give the suspect reasons for his arrest or, indeed, the old formality of laying a hand on the suspect when telling him that he is under arrest. In other words, it can be seen as an integral part of communicating the fact of arrest to the suspect and, as such, an integral part of the arrest itself. Not everyone, however, will agree with that interpretation. The minority judge in Cullen, applying English authority, distinguished between the fact of arrest and the manner of arrest. He considered that handcuffing was an incident of the manner of arrest and, as such, has no bearing on the lawfulness of the arrest which should be determined by reference to whether there was an adequate legal basis for it. The Supreme Court in Pires, Corrigan, Gannon did not express a view one way or the other.

The difference between these two perceptions of the relationship between handcuffing and arrest cannot be dismissed as academic hair-splitting. As noted above, under one interpretation, the unlawful use of handcuffs in the course of arrest can vitiate the lawfulness of the arrest and the subsequent detention, with all the implications that may have for the admissibility of evidence obtained from the suspect while in detention. Under the other interpretation, it merely gives rise to a cause of action in damages which, in the event of success, are likely to be exceptionally modest. None of that, however, should detract from the central issues of whether police officers should enjoy an essentially subjective discretion to handcuff suspects on arrest and, if so, how that sits with the established legal principles on the use of force to effect an arrest. It is submitted that there is still a lack of principled clarity in this area of the law.