The Gazette 1982

g a z e t t e

april

1982

The Powers of the Police

A Critical Overview

(Part 2)

Peter Charleton, B.A. (Mod), Barrister-at-Law

POWERS OF POLICE OVER ARRESTED

PERSONS

Having successfully negotiated the labryinth of arrest

we now come to consider what powers the policeman has

over the arrested person. One could reasonably expect

that having come to the stage where an officer was entitled,

at least temporarily, to deprive a person of his liberty,

other deprivations less serious should follow in

consequence; for example, the power to bring the person

about to the scene of the crime and to places where

material evidence could be or was found; the power to

place the prisoner on an identification parade, photograph

and fingerprint him; the power to gather evidence in his

possession or in his house; and, above all, the power to ask

him relevant questions. In point of fact and law the

policeman should merely leave the prisoner in his cell and

set the prosecution in motion. However, several recent

decisions in England have sought to give the police some

of those powers under the doctrine of reasonableness.

Moving the arrested person and searching his dwelling

Firstly, an accused person cannot be brought to the

scene of the crime or anywhere else save to the arresting

officer's station.

But Lord Denning M.R. in

Dallison

Cqffrey

stated:-

"When a constable has taken into custody a person

reasonably suspected of felony, he can do what is

reasonable to investigate the matter, and to see

whether the suspicions are supported or not by

further evidence. He can, for instance, take the

person suspected to his own house to see whether

any of the stolen property is there; else it may be

removed and valuable evidence lost. He can take the

person suspected to the place where he says he was

working for there he may find persons to confirm or

refute his alibi. The constable can put him on an

identification parade to see if he is picked out by

witnesses."

His Lordship cited no authority in support of those

propositions, but he justified them by saying:

"So long as such measures are taken reasonably,

they are an important adjunct to the administration

of justice. By which I mean, of course, justice not

only to the man himself but to the community at

large. The measures however must be reasonable."

Diplock L.J. in the same case

said the law was not

"fossilized" and he appealed to reason and further placed

on the police a duty to seek to recover the proceeds of theft

and for that purpose to search the house of the suspected

person as soon as possible.

With respect to those learned judges, whether it is

reasonable that a police officer has a power or not is for the

legislature to decide and was never a ground for the

judicial invention of a legal rule.

A further judicial

invention of like nature occurred in

Jeffrey

Black.

Black was arrested for stealing a sandwich from a public

house. The police officers who arrested him searched his

lodgings. They found cannabis and he was charged

accordingly. Widgery L.C.J, was of the opinion that this

was wrongful on the ground apparently that there was no

nexus between the theft of a sandwich and the search of a

person's lodgings. However, he seems to have stated that

where a search of a premises bears a reasonable relation to

the offence charged or arrested upon, in the sense that

evidence may be found there to support the charge, then

the police have power so to search.

I respectfully

disagree. There was no authority cited for this decision.

The traditional method of searching an arrested person's

premises has always been by warrant. If the legislature

considers the nature of a crime serious enough to allow this

invasion of privacy they should provide for it; 'a fortiori' a

summary search, where a search pursuant to a warrant

could be made, must be condemned as usurping the

supervision properly given to the judiciary.

Fingerprinting an Accused:

I think there is no authority, apart from Section 30 (5) of

the Offences Against the State Act, 1939, for finger-

printing anyone.

This seems clearly so because there

does exist an express power in regulations made in 1955

by the Minister for Justice pursuant to powers conferred

by the Penal Servitude Act 1891,

that "a convicted

prisoner may be photographed and measured and his

finger and palm prints may be taken at any time during his

imprisonment" (Regulation 3) whereas in the same

Regulations (Regulation 4) it is provided that:-

"an untried prisoner shall not, while in prison, be

measured or photographed nor shall his finger or

palm prints be taken except with the authority of the

Minister for Justice or upon the application in

writing of a member of the Garda Siochana of not

lower rank than Inspector approved by a Justice of

the District Court, or, in the Dublin Metropolitan

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