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". 12 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. PRIVATE DETECTIVE INVESTIGATIONS Retired Sergeant f r om An Ga r da Siochana in Dublin with thirty years "Ex emp l a r y" Service Certificate (including seven years in Detective Branch and last three years of service in Criminal Intelligence Section), with vast experience in all related areas, is now available for Private Investigations in all depa r tmen t s. ALL AREAS COVERED MALE & FEMALE S TAFF RATES NEGOT I ABLE For further information contact DENIS DEVINE Telephone: Dublin 241746

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