The Gazette 1982

g a z e t t e

april 1982

with law" does not mean that a convicted person

must be released on 'habeas corpus' merely because

some defect or illegality attaches to his detention.

The phrase means that there must be such a default

of fundamental requirements that the detention may

be said to be wanting in due process of law."

Accordingly, we may be relatively certain that the

handcuffing of a prisoner or any other unnecessary force

or deprivation will not vitiate a subsequent confession of

murder, except in denial of access to lawyers or assault

cases. However, it is uncertain whether an act which

renders a detention unlawful for evidence purposes is not a

lesser act than that required for the High Court to grant an

order of'habeas corpus'. I would believe that the two are

the same.

The purpose of arrest:

The last two propositions on the law of arrest may be

stated shortly. The fact that the arrest is the beginning of

the criminal process means that no one can arrest for the

purpose of questioning or indeed for any purpose other

than to have that person charged with a criminal offence.

Walsh J. in

D.P.P.

Shaw

further stated that to arrest

someone merely for the purpose of questioning such an

arrest would constitute a violation of Article 5 of the

European Convention of Human Rights & Fundamental

Freedoms.

In the unreported part of the Judgment in

Dunne v. Clinton

it was further emphasised that an

arrested person must be charged ás soon as is reasonably

possible, and FitzGibbon J. stated:

" . . . the reasonableness of the duration of the

detention is to be measured by the facilities for

requisitioning the facilities of a District Justice or

Peace Commissioner and not by the exigencies of

preparing a good or plausible case against a

suspected person. The Peace Commissioner before

whom a person who is charged has been brought

such as on the mere suspicion of the Garda, has no

option but to discharge the prisoner."

Those principles seem strict but they are as strictly

enforced in the United Kingdom and are a vital safeguard

of the liberty of the citizen.

The last proposition is that the person arrested must be

aware of the reason for his arrest and that the arrester is a

policeman (if it is a situation where only a policeman has

the arrest power), so as to be aware of his rights and to

enable him to begin his defence.

The failure of the

arresting officer to so inform the suspect can render the

detention unlawful but this can be cured afterwards.

Statutory Powers of Arrest

In my view, the substantive law of arrest itself is,

frankly, in a mess. In the important case of obstruction of a

police officer in the course of his duty there is no power of

arrest.

Further, we still retain the distinction between

arrest for felony and arrest on a misdemeanour. In the

former there is a power of arrest in all cases; in the latter

none save where given by statute. Thus, a policeman could

arrest for the theft of a bar of chocolate but would have no

power of arrest in a case of obtaining a million pounds by

false pretences. Further, certain statutes giving powers of

arrest in misdemeanour cases embody crazy distinctions

which throw the law into disrepute. Thus the power of

arrest is given by Section 11 of the Prevention of Offences

Act 1851 to anyone coming upon a person committing an

indictable offence, but only if this is at night; the special

magic of arrest does not occur during the day. Some

statutes give powers of arrest where the policeman

actually sees the offence, others when he has a reasonable

suspicion of it happening, and still others give a power of

arrest only where the constable could not ascertain the

the name and address of the offender.

In England, with the Criminal Law Act 1967, Section

2, some attempt has been made to at least partially rectify

the situation. By that section the category of felony was

abolished in England and is replaced by the concept of an

arrestable offence, which is any offence punishable by a

possible maximum of five years imprisonment or greater.

The power of arrest is then clearly stated as existing in

anyone who comes on a person who is, or who the arrestor

reasonably believes to be, in the act of an arrestable

offence, or who has committed such an offence and the

arrestor reasonably believes him to be guilty of it. The

policeman's power in England exists in identical

circumstances, save that in the case of reasonable

suspicion he need only reasonably suspect the commis-

sion of an arrestable offence for the power of arrest to

exist. The English constable's power further extends to

prevention and both categories of power cover arrest on

attempt.

The confused state of Irish Law, is demonstrated by

the fact that the only authority which exists for the

proposition that a policeman may arrest in cases of

attempted felony is from (1469) Y.B.

and seems to be a

case of arresting to prevent a robbery.

It would thus seem

not to be an authority at all and a policeman coming on the

most serious attempt (during the day) is powerless.

Further statutes which give policemen powers of arrest on

coming on or being present at an offence, are interpreted

that the power is exerciseable on the reasonable

appearance of a state of affairs

whereas others say that

this is only where prompt action is called for

and the

House of Lords says that each statute has to be

individually construed.

Of course all statutes are

different and no one can be expected to carry them all

around in his head.

Suggested Changes In The Law Relating To Arrest

The most obvious solution is complete reform. This

could be done by giving every policeman a power of arrest

on the following statutory lines:

(1) Any constable may arrest without warrant any person

who is or who he, with reasonable cause, suspects to be, in

the act of committing an offence, or whom he, with

reasonable cause, suspects to be guilty of an offence

provided:

(a) The offence is one of those offences in [a Schedule

which could list serious offences both felonies and

misdemeanours]; or,

(b) The person fails to declare his name or address at the

request of the constable, or gives a name and address

which the constable reasonably suspects to be false;

or,

the person, unless arrested, will persist in repeating, or

continuing the commission of the offence, or commit a

breach of the peace, unless arrested; or,

(d) The constable, with reasonable cause, believes the

person will abscond or evade the service of process.