The Gazette 1986

GAZETTE

JANUARY/ FEBRUARY 1986

administrative law, this was sufficient protection for the

rights of the individual.

However, this perception of discretionary powers has

not been unreservedly accepted within the criminal

justice sphere. In 1981 in

King-v- A.G.\

the Supreme

Court examined the Vagrancy Act 1824 (as amended)

which gave the police wide discretionary powers to

arrest vagrants.

In fact, persons in objectively the same position might

or might not be arrested according as to whether the

police did or did not suspect them. The court found this

law to be unconstitutional basically because of the ease

with which such discretion could be abused. The case

demonstrates a divergence of attitude in the court when

considering discretionary powers within the criminal

justice sphere and also emphasises the value attributed

to the right to personal liberty.

The distinctive approach adopted by the Irish courts

when dealing with criminal justice matters has not,

however, been evident in England. The trend there has

been merely to distinguish between different classes of

executive discretion and to ignore the value of the right

interfered with. Thus, in the 1984 House of Lords

decision in

Holgate-Mohammed

-v-

Duke

a detective

constable considered that he had reasonable cause for

suspecting that the appellant had stolen some jewellery

but did not have sufficient evidence to secure a conviction.

He decided to arrest the appellant in the belief that she

would be more likely to confess to the theft if she were

questioned at the police station rather than at home. She

was subsequently released and took an action claiming

false imprisonment on the basis that the arrest was, in

the circumstances, an unreasonable exercise of discret-

ionary power. The House of Lords ruled against the

appellant and based its decision upon the hallowed case

Associated Provincial

-v-

Wednesbury*

. Since the

police officer exercised an executive discretion, this

discretion could only be questioned under well-established

principles applicable to such discretionary powers.

1 herefore, since the

bona fide

belief on the part of the

police officer that the appellant might submit and

confess if questioned at the police station was not an

extraneous circumstance, the discretion was reasonably

exercised.

The divergent approach which ought to exist in

Ireland because of the existence of a written constitution

might be looked upon as merely a matter of theoretical

constitutional law. Indeed, given the recent public

hysteria in relation to the crime issue, such would be all

too understandable. Nevertheless, it may be forgotten

that an arrest is a serious intrusion on one of the most

fundamental human rights, the right to liberty. The

consequences, for the individual may be acute as was

pointed out by Justice Thurgood Marshall in a 1976

decision of the U.S. Supreme Court:

"Being arrested and held by the police, even if for a

few hours, is for most persons both awesome and

frightening . . . An arrest abruptly subjects a person

to constraints and removes him to unfamiliar and

threatening surroundings . . . The security of the

individual requires that so abrupt and intrusive an

authority be granted to public officials only on a

guarded basis."

Reasonable Supsicion:

Because of its very nature, a precise definition of this

concept is as impossible to enunciate as it is undesirable

to do so. It is quite acceptable that a police officer be

allowed a degree of latitude when deciding whether an

arrest is appropriate. But the fear of obstructing the

work of the police has led many judges to the conclusion

that it is better left undefined and unfettered. There is

no doubt but that reasonable suspicion must always

contain an element of vagueness and discretion but this

does not mean that it must always be examined

'in

vacuo'.

There are parameters within which it must be

seen to operate.

Generally, the goal or objective of arrest based on

reasonable suspicion is to charge the suspect, which

brings into play the consequent judicial overview. The

police officer is forced to adhere to the standard of

reasonableness; there is an obligation to justify the

arrest. Because of this, the inherent shortcomings of

reasonable suspicion seem to have been accepted.

However, where the objective is the

questioning

of the

suspect, the reasonableness or othewise of the suspicion

is not necessarily reviewed. Given the potential for

abuse of human rights within such a scenario, the quest

for a definition or an outline of the parameters of

reasonable suspicion takes on a new importance.

At the outset, two relatively acceptable points may be

dealt with. Firstly, it is generally accepted that the onus

is on the arresting garda to establish that reasonable

grounds for the arrest exist

. This is rationalised by the

fact that the decision to arrest is taken by the garda, i.e.

he is the positive actor and may be called upon to justify

his actions. Secondly, the generally held view is that the

personal suspicion of the arresting garda is not, of itself,

sufficient to warrant arrest

. Again, this is reasonable

since alternative criteria would be purely arbitrary and

dependent simply on the prejudices of individual police-

men.

These points deal only with the outer limits of the

standard of reasonableness and are of minor assistance

in ascertaining the precise standard envisaged. This

standard, in turn, must be influenced by the dictates of

the Irish Constitution and its protection of human rights.

Specifically, the Article 40 protection of the right to

personal liberty demands that the reasonable suspicion

criterion be understood at least in a general sense. Yet,

not only is there a lack of Irish case-law but one is

forced to deal almost exclusively with English jurists

and case-law when considering the topic. Again, since

these materials are essentially devoid of a constitutional

perspective they may not be sufficient for Irish 'human

rights' purposes.

A useful starting point might be J. L. Lambert's des-

criptions of the term when he states t h a t. . .

"Given the variety of circumstances giving rise to

reasonable suspicion, a comprehensive definition is

impossible but it should at least be made clear that

reasonable suspicion pre-supposes the existence of

some objectively verifiable fact or facts which cause

the reasonable police officer to form the suspicion in

question".

This statement is useful because it illustrates or sums-

up much of the academic literature on the matter. The

descriptions put forward necessarily entail an under-