The Gazette 1982

g a z e t t e

april 1982

gathering evidence or is not for any reason other than the initiating of criminal proceedings, and this purpose must be made known to the arrestee, (iii) The reason for arrest must be communicated to the arrestee. With regard to the first principle, to arrest someone it is necessary to imprison them. The use of the merest physical force will normally suffice, for example touching their shoulders. In the absence of this force then a cíear . intention to arrest must be communicated and the arrestee must submit. 13 If he does not submit but runs away the mere speaking words of arrest is insufficient. No citizen is obliged to submit to a wrongful arrest; and to use reasonable force in necessary self defence is not even a common assault. 14 However, that latter proposition is now open to some doubt as in R. v. Van Purdy. 15 Roskill L. J. said: " . . . even if this arrest had been unlawful, if, in an effort to rescue the appellant, an affray in which the appellant was involved had occurred or more force was used by him than was reasonable force to resist arrest, then, notwithstanding that the appellant was unlawfully arrested, he would have been guilty of affray and also guilty, though not of assaulting a constable in the execution of his duty, at least of assault occasioning actual bodily harm or of common assault." While this decision appears eminently reasonable I would question the fairness of any future application of it. Assault cases in the District Court are usually taken by members of the Gardai. I would find it unlikely they would concurrently charge a suspect and a police officer with assault or affray resulting from a mistaken or wrongful arrest and I would also wonder whether the D.P.P. would be supplied by the police with the correct information to enable him to frame charges against both police and suspects; under the Van Purdy decision both are equally guilty but the citizen is more likely to end up punished. The use of force in arrest: A police officer may use force in effecting arrest or in subsequent custody where this is necessary. Unfortunately, it further compounds the confusion that results from the continuing distinction between misdemeanours and felonies that force may be used in the latter but not the former. 16 But no more force may be used than is reasonably necessary. Thus, handcuffing is illegal except to prevent escape or to terminate a prisoner's violence. 17 So also it has been recently held in England that a directive which required W.P.C.'s to remove the bra of any female prisoner before leaving her in her cell was unlawful. 18 There the court stated" that the duty of a police constable is to ensure that prisoners in his charge did not injure themselves or others or escape or assist others to do so, or destroy evidence or commit further crime; but that the duty had to be exercised with regard to the disposition of each individual prisoner in the circumstances of each individual case. So in this case it was only if the article was to be used as a suicide weapon or an escape implement that that confiscation would be justified. In dispersing an unlawful assembly the force to be used in its suppression:

"depends on the nature of each riot, for the force used must always be moderate and proportionate to the circumstances of the case and the end to be attained." 20 Force can also be used in the four cases in which it is permissible to enter premises without a warrant. Those are (exerciseable both by the police and citizens), to prevent murder, where a felony had been committed and a suspect followed tó a house, where a felony was about to be committed unless prevented, and, (by a constable) to apprehend an offender running away from an affray. But h#re the force has to be reasonable in that doors cannot be broken down unless the constable demanded entry and the occupier refused. 21 A similar rule to the one for dispersing an unlawful assembly was stated in Canada regarding actual arrest in R. v. Turner 22 as enabling the arresting officer to use such force as is reasonably necessary for the purpose, provided the means adopted: "are such that a reasonable man placed as he was placed would not consider (it) to be disproportionate to the evil to be prevented"; 23 and this is to be welcomed for, without this gloss, an owner of a car who had had his windscreen smashed by a vandal or a police officer, could be held justified in killing were the vandal unusually strong or very determined to resist arrest. 24 The rights of the arrested person: The arrested person loses only his constitutional right to liberty; but he has further the right to legal and medical assistance which would not exist were he not in custody. 25 The right of access to a legal adviser does not extend to having a solicitor present during interrogation 26 but does extend to being able to consult with a solicitor in private 27 and the right is there to be exercised by the suspect himself or by anyone making a 'bona fide' request on his behalf. 27 However, the real significance of this lengthy treatment of the legal rules with regard to force and the rights of a detainee is what emerged from Finlay P. in Harringtons case 27 where he said: "If (the applicant) was assaulted, that would in law constitute an illegal act making his entire detention unlawful and entitling him to be released from that detention." 27 This proposition was also stated with regard to the denial of access to a lawyer 28 and where the place of detention was a health hazard 29 and the question immediately begs itself; if more force is used than the law permits does this render the entire detention unlawful with consequent results? I do not think so; for the original rationale for the doctrine of the continuance of constitutional rights in police custody was stated by O'Higgins C.J. in the Emergency Powers Bill case, 21 that in the case of infringement 'habeas corpus' would lie. Later, however, in State (McDonagh) v. Frawley 30 the Chief Justice said: "The stipulation in Art. 40.1 . . . that a citizen may not be deprived of his liberty save "in accordance

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