The Gazette 1982

april

1982

g a z e t t e

The Powers of the Police A Critical Overview (Part 2) by Peter Charleton, B.A. (Mod), Barrister-at-Law

Diplock L.J. in the same case 70 said the law was not "fossilized" and he appealed to reason and further placed on the police a duty to seek to recover the proceeds of theft and for that purpose to search the house of the suspected person as soon as possible. With respect to those learned judges, whether it is reasonable that a police officer has a power or not is for the legislature to decide and was never a ground for the judicial invention of a legal rule. 71 A further judicial invention of like nature occurred in Jeffrey v. Black. 12 Black was arrested for stealing a sandwich from a public house. The police officers who arrested him searched his lodgings. They found cannabis and he was charged accordingly. Widgery L.C.J, was of the opinion that this was wrongful on the ground apparently that there was no nexus between the theft of a sandwich and the search of a person's lodgings. However, he seems to have stated that where a search of a premises bears a reasonable relation to the offence charged or arrested upon, in the sense that evidence may be found there to support the charge, then the police have power so to search. 73 I respectfully disagree. There was no authority cited for this decision. The traditional method of searching an arrested person's premises has always been by warrant. If the legislature considers the nature of a crime serious enough to allow this invasion of privacy they should provide for it; 'a fortiori' a summary search, where a search pursuant to a warrant could be made, must be condemned as usurping the supervision properly given to the judiciary. 74 Fingerprinting an Accused: I think there is no authority, apart from Section 30 (5) of the Offences Against the State Act, 1939, for finger- printing anyone. 75 This seems clearly so because there does exist an express power in regulations made in 1955 by the Minister for Justice pursuant to powers conferred by the Penal Servitude Act 1891, 76 that "a convicted prisoner may be photographed and measured and his finger and palm prints may be taken at any time during his imprisonment" (Regulation 3) whereas in the same Regulations (Regulation 4) it is provided that:-

POWERS OF POLICE OVER ARRESTED PERSONS Having successfully negotiated the labryinth of arrest we now come to consider what powers the policeman has over the arrested person. One could reasonably expect that having come to the stage where an officer was entitled, at least temporarily, to deprive a person of his liberty, other deprivations less serious should follow in consequence; for example, the power to bring the person about to the scene of the crime and to places where material evidence could be or was found; the power to place the prisoner on an identification parade, photograph and fingerprint him; the power to gather evidence in his possession or in his house; and, above all, the power to ask him relevant questions. In point of fact and law the policeman should merely leave the prisoner in his cell and set the prosecution in motion. However, several recent decisions in England have sought to give the police some of those powers under the doctrine of reasonableness. Moving the arrested person and searching his dwelling Firstly, an accused person cannot be brought to the scene of the crime or anywhere else save to the arresting officer's station. 69 But Lord Denning M.R. in Dallison v. Cqffrey 70 stated:- "When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he says he was working for there he may find persons to confirm or refute his alibi. The constable can put him on an identification parade to see if he is picked out by witnesses." His Lordship cited no authority in support of those propositions, but he justified them by saying: 70 "So long as such measures are taken reasonably, they are an important adjunct to the administration of justice. By which I mean, of course, justice not only to the man himself but to the community at large. The measures however must be reasonable."

"an untried prisoner shall not, while in prison, be measured or photographed nor shall his finger or palm prints be taken except with the authority of the Minister for Justice or upon the application in writing of a member of the Garda Siochana of not lower rank than Inspector approved by a Justice of the District Court, or, in the Dublin Metropolitan 101