The Gazette 1982

g a z e t t e

april 1982

"Information given by one person of whom the

(policeman) knows nothing, would be regarded very

differently from information given by one whom he

knows to be a sensible and trustworthy person. And

the question whether or not a reasonable man would

or would not act upon the information must depend

to a great degree on the opinion to be formed of the

position and circumstances of the informant and of

the amount of credit which may be due under those

circumstances to the person who thus conveyed the

information."

The converse of this is that the police must exercise

great care in arresting a person because one party to a

crime has implicated another; and suspicion so attaching

will normally only be reasonable where there is a

corroboration by ascertained facts or the informant has

shown himself trustworthy

. An anonymous communica-

tion is not enough and in the United States it must at least

be borne out by some ascertained facts actually implicat-

ing the person the police propose to arrest

. Double

hearsay is obviously a less reasonable ground and in all

hearsay cases there exists a rule, probably unknown to the

police, that their reasonable suspicion may be destroyed if,

at the moment of proposed arrest, the person under

suspicion gives a reasonable explanation in circum-

stances where the policeman cannot contradict it.

In justifying arrest it is proper for the police to consider

the record of the suspect. His suspicious behaviour is also

relevant but not his refusal to co-operate with the police

inquiries, for this is the right of every citizen whatever his

duty.

A balancing factor in this freedom of the police to

rely on seemingly tenuous grounds to justify the

reasonableness of their suspicion is their positive duty to

be assiduous in protecting the liberty of the citizen. This of

course further complicates matters. O'Higgins C. J. in

D.P.P.

Madden

was forceful in pointing out that as a

branch of the executive the duty of the police was to

protect and vindicate rights as well as to detect crime.

Thus the police should not leap to arrest when further

enquiries might establish the innocence of a suspect. The

duty was well put by Scott L. J. in

Dumbell v. Roberts

when he said:-

"(The police) may have to act on the spur of the

moment and have no time to reflect, and be bound,

therefore, to arrest to prevent escape; but where

(there is) no danger of the person, who has 'ex

hypothesi' aroused their suspicion that he is

probably the "offender", attempting to escape, they

should make all presently practicable inquiries from

persons present or immediately accessible who are

likely to be able to answer their inquiries forthwith. I

am not suggesting a duty on the police to try to prove

innocence; that is not their function, but they should

act on the assumption that their 'prima facie'

suspicion may be ill-founded."

Arrest at common law — to prevent a breach of the

peace:

The second great power of the constable at common law

is that to prevent a breach of the peace. A policeman may

do any act in lawful assistance of a private person. He will

be bound to do such an act, and will consequently be acting

in the execution of his duty, if it is necessary to assist in

keeping the peace. Thus in

Coffin v. Smith

two police

officers were summoned one night to a boys' club by the

youth leader to ensure that some people, who included the

defendants, left before a disco started. They asked the

defendants to leave but they refused and after swearing

and moving the defendants returned and hit an officer. The

Court of Criminal Appeal held that the actions of the

police officers, in the first instance, interfered with

nobody's liberty and that, even if they did, they were

lawful, for it was reasonable, given the character of the

defendants, to anticipate a breach of the peace if the youth

leader was to be left on his own to eject the defendants. In

the circumstances the policemen were fulfilling their duty

to keep the peace and to take all necessary steps to that

end. In another recent English case

a policeman was held

entitled to obstruct a person who jumped a bus queue and

to restrain him when he protested until the bus has moved

off when only then the defendant had finally become aware

that the officious bystander was, in fact, a policeman.

According to the Court of Appeal the detention did not

amount to arrest; it was a restraint and part of the

policeman's inherent power to take reasonable action to

keep the peace. So in

Humphries

Connor

a constable

was held justified in removing an orange lily from a lady

when the wearing of it was causing some excitement.

Hayes J. expressed the origin of the rule thus:

"A constable, by his very appointment, is charged

with the solemn duty of seeing that the peace is

preserved. The law has not ventured to lay down

what precise measures shall be adopted by him in

every state of facts which calls for his interference.

But it has done far better; it has announced to him,

and to the public over whom he is placed, that he is

not only at liberty, but is bound, to see that the peace

be preserved, and that he is to do everything that is

necessary for that purpose, neither more or less."

Unfortunately, because the law is uncertain, great

difficulty has been had in formulating what the policeman

cannot do and the law seems to have gone somewhat

'haywire'. In

Coyne v. Tweedy

a lawful meeting in a

public church was violently dispersed by the police

because of the danger to the public peace between groups

supporting rival parish priests; the authority relied on

being

O'Kelly

Harvey

in which Palles C.B. held that a

magistrate was justified in dispersing a land league

meeting holding it to be an unlawful assembly, because in

itself it was likely to produce damage to the peace of the

neighbourhood. Palles C.B. expressly declined to decide

whether authority existed if the meeting, in itself lawful,

was likely to provoke a breach of the peace because of an

intemperate invocation to protestants to destroy it. More

recently in

Thomas

Sawkins

the plaintiffs had held

meetings under the auspices of the Communist Party to

protest against the Incitement to Disaffection Bill. Local

constables were wont to attend and sit prominently in the

front row. At the last such meeting the speaker in the

course of an impassioned address pointed at them and said

"If it were not for the presence of those people I could tell

you a hell of a lot more!" Uninvited, the constables

attended the next meeting and forced entry and, upon

being asked to leave and refusing, a slight scuffle ensued.

Lord Hewart C. J. sweepingly conferred on constables a

right of entry to prevent a crime. Avory and Lawrence J.J.

were of the view that a breach of the peace was anticipated