The Gazette 1986

GAZETTE

JANUARY/FEBRUARY 1986

standing of that which they seek to define or describe

thus rendering them largely impractical. A workable

and precise definition may not be possible but in an

attempt to discover what, even in general terms, is

meant by the concept, it is helpful to briefly examine the

history of police powers of arrest.

Police Powers of Arrest:

The old principle was that an arrest ought not to be

made until the case against the accused was complete.

Thus, the police were required to have all the necessary

evidence in their possession before the arrest was made.

The arrest marked the culmination of the investigatory

stage of the criminal process and heralded the beginning

of the accusatory stage. By way of contrast, some

modern-day legislation"' allows police officers and

members of the armed forces to arrest on the basis of

personal

suspicion. It is obvious that the reasonable sus-

picion criterion is to be found somewhere between these

polar extremes. It is interesting to note, however, that it

is only where no trial whatever is intended that personal

suspicion suffices. This is an illustration of the correl-

ation which exists between the standard set down and

the objective sought to be achieved.

In 1970, in the Privy Council decision of

Hussien

-v-

Chong Fook Kom

u it was held (per Lord Devlin) that

reasonable suspicion could not be equated with '

prima

facie'

proof; that suspicion could well take into account

matters that could not be put in evidence; and that the

police were not called upon, before acting, to have

anything like a

'prima facie'

case for conviction but

only to be satisfied that there did in fact exist reasonable

grounds for the suspicion of guilt. The problem inherent

in this decision which conceded an action for false

imprisionment against the policeman concerned, and it is

indicative of the few cases on the matter in existence, is

that it tells us a little about what reasonable suspicion is

not or may not be.

The overriding question nevertheless remains - "What

is reasonable suspicion?" This inability or unwillingness

of judges to define the concept may arise out of a fear

that such definition or positive description could restrict

the police when they should objectively have the power

to act. This judicial inertia has led to the suggestion that. . .

"Reasonable suspicion is a low point on a scale which

starts with mere suspicion and ends with certainty. In

some situations the coercive action is taken at a

higher point than reasonable suspicion; unfortunately,

it more frequently takes place at a lower point".

It is clear then that arrest based on reasonable suspicion,

if it is to be an effective police power will inevitably con-

tain an element of uncertainty. One deals with prob-

abilities which are not technical, but practical consider-

ations upon which reasonable men, who are not legal

technicians, act. The police officer does not have the

option of a reserved judgment - he or she must act from

facts and circumstances within his or her knowledge

sufficient in themselves to warrant a reasonable man or

woman in the belief that a suspect should be arrested.

Detention for Questioning:

Yet, that which comes after arrest is equally important.

Detention for the purpose of questioning removes the

judicial overview and this suspends the obligation to

justify the detention of the suspect. The detention period

may be sufficient to transform mere personal suspicion

into reasonable suspicion thus increasing the probability

that persons may be deprived of the right to personal

liberty solely on the basis of personal suspicion.

When the certainty of judicial overview as a conse-

quence of arrest is removed, the reasonableness of the

suspicion may, perhaps legitimately, vary according to

the seriousness of the crime suspected; according to the

effectiveness of the power of detention in the particular

case (i.e. will it ensure that justice is done?); and accord-

ing as to whether the detention is necessary to prevent

the conduct which is sought to be prohibited. More

important, however, is the fact that the criterion of

reasonableness may also drastically fluctuate in accord-

ance with the income, social group and general status of

the person suspected. Nowadays, specific areas and par-

ticular classes of person are perceived as being intrinsic-

ally criminogenic, a factor which will invariably affect

the reasonableness of a given suspicion. The definitional

problems may then be utilised so as to cover violations

of human rights with a cloak of

'bona fides'.

The

admitted sense of powerlessness among the gardai in

dealing with the crime problem may be a temptation to

abuse the period of detention. •

Footnotes

(1) The Minister for Justice has deferred (he operation of this pat

ticular section pending the introduction of a statutory complaints

procedure against the gardai in regard to the use of the detention

power.

(2)

East Donegal Co-operative Livestock Mart Ltd. -v- Attornev

General

[1970] I.R. 317.

(3)

King

-v-

A.G.

[1981] I.R. 233.

(4) [1984] All E.R. 1054.

(5) [1948] I.K.B. 223.

(6)

U.S. -v- Watson

44 U.S. Law Week 4112 [1976],

(7)

l.R.C. -v- Rossminster

[1980] A.C. 952.

(8)

Siddiqui-v- Swain

[1979] R.T.R.;

Howell

[1981] 3 All E.R. 383.

(9) [1973] Public L aw 285.

(10) e.g. Special Powers (Northern Ireland) Act. 1973.

(11) [1970] A.C. 942.

(12) K. W. Lidstonc. "Investigative Powers and the Rights of the

Citizen" [1981 ] Criminal

l.aw

Review. 454.

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