The Gazette 1982

g a z e t t e

april 1982

(2) Where a constable arrests a person, he shall tell that

person, at the time of the arrest or as soon thereafter as is

possible, the act for which he is arrested and the

circumstances as specified in section 1 above whichjustify

the arrest.

3. (a) Where a person has been arrested under paragraphs

(b) (c) or (d) of section 1 above, that person shall be

released from custody:

(i) In the case of a person arrested under paragraph (b),

when his name and address have been disclosed to

the constable;

(ii) In the case of a person arrested under paragraph (c),

when the constable no longer has reasonable cause to

believe that the arrested person will persist in

repeating or continuing the commission of the

offence;

(iii) In the case of a person arrested under paragraph (d),

when the constable no longer has reasonable cause to

believe that the arrested person will abscond or evade

the service of process.

(b) In section 3 (a) the term "constable" shall mean the

constable having custody of the arrested person for the

time being.

Arrest at Common Law — "on Reasonable Suspicion"

But now we should examine the powers of arrest at

common law as they exist apart from statute. The first

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great power of the constable at common law arises on

"reasonable suspicion of a felony having been committed

and of the person being guilty of it."

Thus, except in

conspiracy or common design cases or in a case where, for

example, a policeman finds two persons standing over a

recent murder victim, only one person may be arrested.

Suspicion attaching to several persons does not justify

arresting them all. In carrying out the arrest, the policeman

need not himself believe in the arrestee's guilt nor need he

fear the arrestee's escape in the event of a failure to arrest;

it is enough if suspicion sufficient to justify arrest exists.

The question of what constitutes reasonable and sufficient

suspicion is a question of law and in a civil action for false

imprisonment would be a question for the judge.

However, in criminal cases it is a question for the jury.

The police need not be certain, nor have enough

evidence to convict before arrest, nor enough grounds to

make out a 'prima facie' case. However, their suspicion

must be reasonable and not based merely on instinct or

guesswork

but must be founded on some grounds which

if subsequently challenged will at least show that at the

moment of arrest they acted reasonably. Thus, in the

United States at least, the correctness of a 'hunch' leading

to arrest will be no defence to subsequent civil proceedings

for false imprisonment; and in this jurisdiction, presum-

ably, just because the Gardai have the right hunch and

arrest a person does not thereby render that person's

detention lawful; and, consequently, any confession made

by that person would not be admissible in evidence. So

what do the police need in order to show that they acted

reasonably?

Firstly, the question of the reasonable suspicion of the

police has nothing to do with the technical law of evidence.

At the trial within a trial the judge orjury will be entitled to

consider matters which the law would not allow a jury to

hear on the substantive issue of guilt. Thus in

Hussein v.

Chong Fook Kam

the arrestee's lorry had discarded a

piece of timber which had killed a passing motorist. The

lorry did not stop but the police got its number. The next

day the police found the driver who offered them an alibi.

They arrested the driver and upon investigation the alibi

proved false. Lord Devlin said that the mere circumstance

of driving could not furnish grounds for reasonable

suspicion as to reckless driving but on the discovery of the

false nature of the alibi such suspicion sufficient to justify

the arrest was created and cured its bad character from

that moment.

Lord Devlin said:

"Suspicion can take into account matters which

could not be put in evidence at a l l . . . Suspicion can

take into account also matters which, though

admissable, could not form part of a 'prima facie'

case. Thus the fact that the accused has given a false

alibi does not obviate the need for 'prima facie' proof

of his presence at the scene of the crime; it will

become of considerable importance when such proof

as there is, is being weighed perhaps against a second

alibi; it would undoubtedly be a very suspicious

circumstances."

In founding a reasonable suspicion a policeman may

also rely on hearsay. But normally mere hearsay will

probably not be enough, but this depends on the source of

that information. According to Hatherly L.C. in

Lister

Perryman.