The Gazette 1982

g a z e t t e

april 1982

The Powers of the Police

A Critical Overview

(Part 1)

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

THINK we are bound to take care that the law relating

to the duty of constables shall rest upon broad, plain,

intelligible principles." This policy, which was stated in

the 1823 case of

R. V. Weir

is, it has been remarked by

Professor D. A. Thomas of the London School of

Economics

, remarkable both for its self-evident merit and

the consistency with which it has been ignored by later

generations of judges and parliamentary draftsmen. The

policy itself while of value in England has become of the

highest importance in Ireland. No one reading the clear

judgment of Costello J. at first instance in

Peope (D.P.P.)

V. Shaw

can fail to remark how difficult is the law the

police have to administer.

The policeman on the beat and the detective in the

investigation of crime each needs to know precisely what

he is permitted by law to do. This is so for two reasons,

firstly, because at the very least the class of citizens most

reasonably expected to be seen observing the law are the

police; and, secondly, because in the event of ignorance or

deliberate infringement, the efforts of the police to secure

evidence against a suspect will be set at nought; for a Court

of trial is bound to exclude evidence obtained in breach of

an accused's constitutional rights

The nature of the area in which the policeman works is

such that in almost every case where the law has not given

him specific power to aid his investigation, he will in

breaking the law be treading on and infringing the frail and

uncertain edifice of the citizen's constitutional rights. No

doubt, if the policeman does infringe a person's liberty,

bodily integrity or the inviolability of a person's dwelling,

he does so not because he wants to but because those are

the "trees" which yield the most useful and interesting

evidential "fruit", but which also, without express

legislative authority, are likely to become the judicially

declared "poisoned fruit", useless at the subsequent trial.

The police in performing their duties have, in the

common law system, operated under a regime which

imposes wide duties but gives them limited powers. They

are mere citizens carrying out a crime-prevention and

peace-keeping function. Every action they perform which

the ordinary citizen could not also perform with impunity

(such as talking to someone at his home) is an illegal action

and must be justified by the existence and operation of

some legal authority.

The great case of

Entrick v.

Carrington

affirmatively establishes this doctrine, at

least with regard to searches and arrests, but the general

principle upon which it was based underlies the analysis of

all other police powers;

But of course the police can do

anything which is not illegal,

and recently a judicial

attitude of ancillary powers servient to police duties has

grown up.

This latter doctrine, which I submit is totally

spurious, contemplates the police being given any powers

they reasonably need to carry out their duties provided

that in exercising them they act reasonably I disagree with

this development for three reasons. Firstly, it is contrary to

all authority and consequently plunges the law into a state

of total confusion, whereby neither the citizen will know

when he must submit or the constable when and how he

can act. Secondly, it is unrealistic to expect the judiciary to

be able to interpret either clearly, consistently, or in an

unpolitical fashion, the application of this "rule", with

more consequent confusion. Thirdly, the absence of a

power is never a ground forjudicial invention; it is a ground

for comment which can then either be ignored or acted

upon by the proper legislative authority; and legislation

can at least propose and enforce safeguards and conditions

which are beyond the scope of the common law. It is the

purpose of the remainder of this article to examine specific

aspects of the law on police powers and, by way of

commentary, to point out possible judicial developments,

and to note the absence of necessary police powers and

causes for uncertainty in their exercise due to the unsettled

state of the law.

A. ARREST

Criminal proceedings are usually initiated by arrest.

"Neither a police constable nor anyone else has a general

power to arrest for crime. A person making an arrest must

act under warrant or bring himself within one of the four

corners of the detailed rules authorising arrest without

warrant.

Arrest has certain legal incidents which are

vital to its proper exercise, for in the absence of one of

them the arrest will be unlawful, and evidence obtained in

police custody consequently inadmissible. Generally,

three principles may be broadly stated —

(i) The arrestee must be deprived of his liberty, that is

imprisoned, but the extent of the deprivation must not

exceed what is reasonably necessary and as a

consequence of arrest, no constitutional right other

than freedom of movement and association generally

may be denied a detained person.

(ii) Arrest is only lawful when its purpose is not for