The Gazette 1982

april 1982

g a z e t t e

arrest is given by Section 11 of the Prevention of Offences Act 1851 to anyone coming upon a person committing an indictable offence, but only if this is at night; the special magic of arrest does not occur during the day. Some statutes give powers of arrest where the policeman actually sees the offence, others when he has a reasonable suspicion of it happening, and still others give a power of arrest only where the constable could not ascertain the the name and address of the offender. In England, with the Criminal Law Act 1967, Section 2, some attempt has been made to at least partially rectify the situation. By that section the category of felony was abolished in England and is replaced by the concept of an arrestable offence, which is any offence punishable by a possible maximum of five years imprisonment or greater. The power of arrest is then clearly stated as existing in anyone who comes on a person who is, or who the arrestor reasonably believes to be, in the act of an arrestable offence, or who has committed such an offence and the arrestor reasonably believes him to be guilty of it. The policeman's power in England exists in identical circumstances, save that in the case of reasonable suspicion he need only reasonably suspect the commis- sion of an arrestable offence for the power of arrest to exist. The English constable's power further extends to prevention and both categories of power cover arrest on attempt. The confused state of Irish Law, is demonstrated by the fact that the only authority which exists for the proposition that a policeman may arrest in cases of attempted felony is from (1469) Y.B. 38 and seems to be a case of arresting to prevent a robbery. 39 It would thus seem not to be an authority at all and a policeman coming on the most serious attempt (during the day) is powerless. 40 Further statutes which give policemen powers of arrest on coming on or being present at an offence, are interpreted that the power is exerciseable on the reasonable appearance of a state of affairs 41 whereas others say that this is only where prompt action is called for 42 and the House of Lords says that each statute has to be individually construed. 43 Of course all statutes are different and no one can be expected to carry them all around in his head. 44 Suggested Changes In The Law Relating To Arrest The most obvious solution is complete reform. This could be done by giving every policeman a power of arrest on the following statutory lines: 45 (1) Any constable may arrest without warrant any person who is or who he, with reasonable cause, suspects to be, in the act of committing an offence, or whom he, with reasonable cause, suspects to be guilty of an offence provided: (a) The offence is one of those offences in [a Schedule which could list serious offences both felonies and misdemeanours]; or, (b) The person fails to declare his name or address at the request of the constable, or gives a name and address which the constable reasonably suspects to be false; or, (c) The constable, with reasonable cause, believes that the person, unless arrested, will persist in repeating, or continuing the commission of the offence, or commit a breach of the peace, unless arrested; or, (d) The constable, with reasonable cause, believes the person will abscond or evade the service of process.

with law" does not mean that a convicted person must be released on 'habeas corpus' merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law." Accordingly, we may be relatively certain that the handcuffing of a prisoner or any other unnecessary force or deprivation will not vitiate a subsequent confession of murder, except in denial of access to lawyers or assault cases. However, it is uncertain whether an act which renders a detention unlawful for evidence purposes is not a lesser act than that required for the High Court to grant an order of'habeas corpus'. I would believe that the two are the same. The purpose of arrest: The last two propositions on the law of arrest may be stated shortly. The fact that the arrest is the beginning of the criminal process means that no one can arrest for the purpose of questioning or indeed for any purpose other than to have that person charged with a criminal offence. 31 Walsh J. in D.P.P. v. Shaw n further stated that to arrest someone merely for the purpose of questioning such an arrest would constitute a violation of Article 5 of the European Convention of Human Rights & Fundamental Freedoms. 33 In the unreported part of the Judgment in Dunne v. Clinton 31 it was further emphasised that an arrested person must be charged ás soon as is reasonably possible, and FitzGibbon J. stated: " . . . the reasonableness of the duration of the detention is to be measured by the facilities for requisitioning the facilities of a District Justice or Peace Commissioner and not by the exigencies of preparing a good or plausible case against a suspected person. The Peace Commissioner before whom a person who is charged has been brought such as on the mere suspicion of the Garda, has no option but to discharge the prisoner." 31 Those principles seem strict but they are as strictly enforced in the United Kingdom and are a vital safeguard of the liberty of the citizen. 34 The last proposition is that the person arrested must be aware of the reason for his arrest and that the arrester is a policeman (if it is a situation where only a policeman has the arrest power), so as to be aware of his rights and to enable him to begin his defence. 35 The failure of the arresting officer to so inform the suspect can render the detention unlawful but this can be cured afterwards. 36 Statutory Powers of Arrest In my view, the substantive law of arrest itself is, frankly, in a mess. In the important case of obstruction of a police officer in the course of his duty there is no power of arrest. 37 Further, we still retain the distinction between arrest for felony and arrest on a misdemeanour. In the former there is a power of arrest in all cases; in the latter none save where given by statute. Thus, a policeman could arrest for the theft of a bar of chocolate but would have no power of arrest in a case of obtaining a million pounds by false pretences. Further, certain statutes giving powers of arrest in misdemeanour cases embody crazy distinctions which throw the law into disrepute. Thus the power of