The Gazette 1982

g a z e t t e

april 1982

The Powers of the Police A Critical Overview 1 (Part 1) by Peter Charleton, B.A. (Mod), Barrister-at-Law

I THINK we are bound to take care that the law relating to the duty of constables shall rest upon broad, plain, intelligible principles." This policy, which was stated in the 1823 case of R. V. Weir 2 is, it has been remarked by Professor D. A. Thomas of the London School of Economics 3 , remarkable both for its self-evident merit and the consistency with which it has been ignored by later generations of judges and parliamentary draftsmen. The policy itself while of value in England has become of the highest importance in Ireland. No one reading the clear judgment of Costello J. at first instance in Peope (D.P.P.) V. Shaw 4 can fail to remark how difficult is the law the police have to administer. The policeman on the beat and the detective in the investigation of crime each needs to know precisely what he is permitted by law to do. This is so for two reasons, firstly, because at the very least the class of citizens most reasonably expected to be seen observing the law are the police; and, secondly, because in the event of ignorance or deliberate infringement, the efforts of the police to secure evidence against a suspect will be set at nought; for a Court of trial is bound to exclude evidence obtained in breach of an accused's constitutional rights 5 . The nature of the area in which the policeman works is such that in almost every case where the law has not given him specific power to aid his investigation, he will in breaking the law be treading on and infringing the frail and uncertain edifice of the citizen's constitutional rights. No doubt, if the policeman does infringe a person's liberty, bodily integrity or the inviolability of a person's dwelling, he does so not because he wants to but because those are the "trees" which yield the most useful and interesting evidential "fruit", but which also, without express legislative authority, are likely to become the judicially declared "poisoned fruit", useless at the subsequent trial. 6 The police in performing their duties have, in the common law system, operated under a regime which imposes wide duties but gives them limited powers. They are mere citizens carrying out a crime-prevention and peace-keeping function. Every action they perform which the ordinary citizen could not also perform with impunity (such as talking to someone at his home) is an illegal action and must be justified by the existence and operation of some legal authority. 7 The great case of Entrick v. Carrington 8 affirmatively establishes this doctrine, at least with regard to searches and arrests, but the general principle upon which it was based underlies the analysis of

all other police powers; 9 But of course the police can do anything which is not illegal, 10 and recently a judicial attitude of ancillary powers servient to police duties has grown up. 11 This latter doctrine, which I submit is totally spurious, contemplates the police being given any powers they reasonably need to carry out their duties provided that in exercising them they act reasonably I disagree with this development for three reasons. Firstly, it is contrary to all authority and consequently plunges the law into a state of total confusion, whereby neither the citizen will know when he must submit or the constable when and how he can act. Secondly, it is unrealistic to expect the judiciary to be able to interpret either clearly, consistently, or in an unpolitical fashion, the application of this "rule", with more consequent confusion. Thirdly, the absence of a power is never a ground forjudicial invention; it is a ground for comment which can then either be ignored or acted upon by the proper legislative authority; and legislation can at least propose and enforce safeguards and conditions which are beyond the scope of the common law. It is the purpose of the remainder of this article to examine specific aspects of the law on police powers and, by way of commentary, to point out possible judicial developments, and to note the absence of necessary police powers and causes for uncertainty in their exercise due to the unsettled state of the law. A. ARREST Criminal proceedings are usually initiated by arrest. "Neither a police constable nor anyone else has a general power to arrest for crime. A person making an arrest must act under warrant or bring himself within one of the four corners of the detailed rules authorising arrest without warrant. 12 Arrest has certain legal incidents which are vital to its proper exercise, for in the absence of one of them the arrest will be unlawful, and evidence obtained in police custody consequently inadmissible. Generally, three principles may be broadly stated — (i) The arrestee must be deprived of his liberty, that is imprisoned, but the extent of the deprivation must not exceed what is reasonably necessary and as a consequence of arrest, no constitutional right other than freedom of movement and association generally may be denied a detained person. (ii) Arrest is only lawful when its purpose is not for

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