The Gazette 1986

GAZETTE

JANUARY/ FEBRUARY 1986

"Suppose he never commits the Crime?"

— an examination of the new power of detention for questioning

Bertie Meh i gan, B . C . L ., LL.B.

The Queen:-

"There's the King's messenger. He is in prison now being punished; and the trial doesn't even begin

'till next Wednesday; and of course the crime comes last of all. "

A lice:-

' 'Suppose he never commits the crime?''

('Alice in Wonderland'

by Lewis Carroll.)

ollowing widespread criticism for its apparent

inability to deal with an alleged crime-wave, the

Oireachtas has responded by passing the Criminal Justice

Act, 1984. This legislation has evoked controversy in a

number of respects but none more so than in relation to

the power vested in the gardai by section 4 of the Act

Briefly, section 4 provides that the gardai may detain a

person whom they have "arrested" if reasonable

grounds exist for believing that such detention is neces-

sary for the proper investigation of the offence. The

initial period of detention is set at six hours but it

may be extended a nd / or suspended with the result that a

suspect may potentially be held for a total of twenty

hours.

Section 4 is indicative of a tendency right across the

political spectrum to increase police powers in an

attempt to cope with an increase in the crime-rate. It is

remarkably similar to that introduced in Scotland under

the Criminal Justice (Scotland) Act, 1980, and reflects a

strategy which has been followed in France through the

'Securite et Liberie'

laws of 1981 and in England through

the Police and Criminal Evidence Act, 1984.

Given the reactionary treatment of the crime issue by

certain sections of the media and the inevitable

opportunism of a number of politicians when dealing with

the matter, it is hardly surprising that no concerted oppos-

ition to the new power has been mounted. Nevertheless,

since section 4 essentially introduces on a general scale a

power which heretofore was reserved for "terrorist"

offences it is undeniable that serious incursions on

human rights and in particular the rights of particular

sections of society are immediately possible.

One such human rights issue is the reviewability or

otherwise by the Courts of the exercise of the new

powers which the gardai are to be given. Are the gardai

to be vested with a power which, in reality, is unreview-

able and thus in contravention of the right to personal

liberty?

The essential dilemma is focused on the much utilised

yet ill-defined concept within criminal procedure of

'reasonable suspicion'. Traditionally, arrest based on

reasonable suspicion has been seen as the first step in the

invocation of the criminal process which ultimately

terminates with the trial of the accused and a

determination of his or her guilt. Thus, arrest and the

judicial process are inexorably linked so that the, albeit

understandable, inadequacies of the notion of reasonable

suspicion are acceptable. Since section 4 permits detention

for questioning and removes the guarantee of judicial

participation in every case, the quest for a definition of

'reasonable suspicion' becomes more important.

Before concentrating on this matter of reasonable

suspicion the issue of potentially divergent stances taken

in this jurisdiction compared with others, specifically

England, when dealing with the concept is worth exam-

ining. In Ireland, due to the existence of Article 40.4.1 °

of the Irish Constitution, the reasonable suspicion

requirement might be viewed as a practical manifest-

ation of the protection afforded to the liberty of the

individual. As a result, the liberty of the individual is

equally as important as the security of society generally.

The rights of the individual as such are recognised as

matters worthy of protection.

This, however, is not necessarily the case in England.

Many of the liberties, powers and immunities recognised

there originated not out of any concern for the intrinsic

value of rights but more as a response to the relatively

weak position of the defendant

visa vis

the Crown. It is

proper that the rules of evidence and procedure should

afford greater protection to the individual defended in

order to counterbalance the greater resources of the

prosecutor. Indeed, it has been argued in England that a

radical review ought to take place in the criminal justice

sphere because of the emergence of a comprehensive

system of legal aid which has tended to restore the

balance of resources between both sides.

Given the propensity of the Oireachtas to substantially

re-enact English legislation in this country and the

tendency of the Irish judges to follow English precedent,

the differing stress that should be placed on the value of

rights as such may all too often be ignored. Yet, it is a

factor which must be brought into account within the

sphere of criminal justice where incursions on human

rights are more likely than in other areas of the law.

Indeed, the power to arrest on reasonable suspicion is

representative of the implementation of many standards

required by the law through the delegation of discretion-

ary powers to officials which must be exercised within

particular frontiers and which are reviewable by the

courts. In the administrative field, the

East Donegal Co-

case

conceivably marks the apex of such discretion-

ary powers. Under the relevant Act, the Minister for

Agriculture was given an extremely wide discretion in

granting and revoking licences for cattle marts. The Act

was challenged

(inter alia)

on the ground that it infringed

the constitutional guarantee of equality since the Minister

was essentially free to discriminate. The Supreme Court

reversed a decision of the High Court and considered

that since the Minister would have to exercise his dis-

cretion within the parameters of constitutional and