The Gazette 1982

g a z e t t e

april 1982

gathering evidence or is not for any reason other than

the initiating of criminal proceedings, and this

purpose must be made known to the arrestee,

(iii) The reason for arrest must be communicated to the

arrestee.

With regard to the first principle, to arrest someone it is

necessary to imprison them. The use of the merest

physical force will normally suffice, for example touching

their shoulders. In the absence of this force then a cíear .

intention to arrest must be communicated and the arrestee

must submit.

If he does not submit but runs away the

mere speaking words of arrest is insufficient. No citizen is

obliged to submit to a wrongful arrest; and to use

reasonable force in necessary self defence is not even a

common assault.

However, that latter proposition is now

open to some doubt as in

Van Purdy.

Roskill L. J.

said:

" . . . even if this arrest had been unlawful, if, in an

effort to rescue the appellant, an affray in which the

appellant was involved had occurred or more force

was used by him than was reasonable force to resist

arrest, then, notwithstanding that the appellant was

unlawfully arrested, he would have been guilty of

affray and also guilty, though not of assaulting a

constable in the execution of his duty, at least of

assault occasioning actual bodily harm or of

common assault."

While this decision appears eminently reasonable I

would question the fairness of any future application of it.

Assault cases in the District Court are usually taken by

members of the Gardai. I would find it unlikely they would

concurrently charge a suspect and a police officer with

assault or affray resulting from a mistaken or wrongful

arrest and I would also wonder whether the D.P.P. would

be supplied by the police with the correct information to

enable him to frame charges against both police and

suspects; under the Van Purdy decision both are equally

guilty but the citizen is more likely to end up punished.

The use of force in arrest:

A police officer may use force in effecting arrest or in

subsequent custody where this is necessary. Unfortunately,

it further compounds the confusion that results from the

continuing distinction between misdemeanours and felonies

that force may be used in the latter but not the former.

But

no more force may be used than is reasonably necessary.

Thus, handcuffing is illegal except to prevent escape or to

terminate a prisoner's violence.

So also it has been recently

held in England that a directive which required W.P.C.'s to

remove the bra of any female prisoner before leaving her in

her cell was unlawful.

There the court stated" that the duty

of a police constable is to ensure that prisoners in his charge

did not injure themselves or others or escape or assist others

to do so, or destroy evidence or commit further crime; but

that the duty had to be exercised with regard to the

disposition of each individual prisoner in the circumstances

of each individual case. So in this case it was only if the

article was to be used as a suicide weapon or an escape

implement that that confiscation would be justified.

In dispersing an unlawful assembly the force to be used in

its suppression:

"depends on the nature of each riot, for the force used

must always be moderate and proportionate to the

circumstances of the case and the end to be

attained."

Force can also be used in the four cases in which it is

permissible to enter premises without a warrant. Those are

(exerciseable both by the police and citizens), to prevent

murder, where a felony had been committed and a suspect

followed tó a house, where a felony was about to be

committed unless prevented, and, (by a constable) to

apprehend an offender running away from an affray. But

h#re the force has to be reasonable in that doors cannot be

broken down unless the constable demanded entry and the

occupier refused.

A similar rule to the one for dispersing an unlawful

assembly was stated in Canada regarding actual arrest in

Turner

as enabling the arresting officer to use such

force as is reasonably necessary for the purpose, provided

the means adopted:

"are such that a reasonable man placed as he was

placed would not consider (it) to be disproportionate

to the evil to be prevented";

and this is to be welcomed for, without this gloss, an owner

of a car who had had his windscreen smashed by a vandal

or a police officer, could be held justified in killing were the

vandal unusually strong or very determined to resist

arrest.

The rights of the arrested person:

The arrested person loses only his constitutional right to

liberty; but he has further the right to legal and medical

assistance which would not exist were he not in custody.

The right of access to a legal adviser does not extend to

having a solicitor present during interrogation

but does

extend to being able to consult with a solicitor in private

and the right is there to be exercised by the suspect himself

or by anyone making a 'bona fide' request on his behalf.

However, the real significance of this lengthy treatment of

the legal rules with regard to force and the rights of a

detainee is what emerged from Finlay P. in

Harringtons

case

where he said:

"If (the applicant) was assaulted, that would in law

constitute an illegal act making his entire detention

unlawful and entitling him to be released from that

detention."

This proposition was also stated with regard to the

denial of access to a lawyer

and where the place of

detention was a health hazard

and the question

immediately begs itself; if more force is used than the law

permits does this render the entire detention unlawful with

consequent results?

I do not think so; for the original rationale for the

doctrine of the continuance of constitutional rights in

police custody was stated by O'Higgins C.J. in the

Emergency Powers Bill case,

that in the case of

infringement 'habeas corpus' would lie. Later, however, in

State (McDonagh)

Frawley

the Chief Justice said:

"The stipulation in Art. 40.1 . . . that a citizen may

not be deprived of his liberty save "in accordance