The Gazette 1982

g a z e t t e

april 1982

(2) Where a constable arrests a person, he shall tell that person, at the time of the arrest or as soon thereafter as is possible, the act for which he is arrested and the circumstances as specified in section 1 above whichjustify the arrest. 3. (a) Where a person has been arrested under paragraphs (b) (c) or (d) of section 1 above, that person shall be released from custody: (i) In the case of a person arrested under paragraph (b), when his name and address have been disclosed to the constable; (ii) In the case of a person arrested under paragraph (c), when the constable no longer has reasonable cause to believe that the arrested person will persist in repeating or continuing the commission of the offence; (iii) In the case of a person arrested under paragraph (d), when the constable no longer has reasonable cause to believe that the arrested person will abscond or evade the service of process. (b) In section 3 (a) the term "constable" shall mean the constable having custody of the arrested person for the time being. Arrest at Common Law — "on Reasonable Suspicion" But now we should examine the powers of arrest at common law as they exist apart from statute. The first

great power of the constable at common law arises on "reasonable suspicion of a felony having been committed and of the person being guilty of it." 46 Thus, except in conspiracy or common design cases or in a case where, for example, a policeman finds two persons standing over a recent murder victim, only one person may be arrested. Suspicion attaching to several persons does not justify arresting them all. In carrying out the arrest, the policeman need not himself believe in the arrestee's guilt nor need he fear the arrestee's escape in the event of a failure to arrest; it is enough if suspicion sufficient to justify arrest exists. The question of what constitutes reasonable and sufficient suspicion is a question of law and in a civil action for false imprisonment would be a question for the judge. 47 However, in criminal cases it is a question for the jury. 48 The police need not be certain, nor have enough evidence to convict before arrest, nor enough grounds to make out a 'prima facie' case. However, their suspicion must be reasonable and not based merely on instinct or guesswork 49 but must be founded on some grounds which if subsequently challenged will at least show that at the moment of arrest they acted reasonably. Thus, in the United States at least, the correctness of a 'hunch' leading to arrest will be no defence to subsequent civil proceedings for false imprisonment; and in this jurisdiction, presum- ably, just because the Gardai have the right hunch and arrest a person does not thereby render that person's detention lawful; and, consequently, any confession made by that person would not be admissible in evidence. So what do the police need in order to show that they acted reasonably? Firstly, the question of the reasonable suspicion of the police has nothing to do with the technical law of evidence. At the trial within a trial the judge orjury will be entitled to consider matters which the law would not allow a jury to hear on the substantive issue of guilt. Thus in Hussein v. Chong Fook Kam i0 the arrestee's lorry had discarded a piece of timber which had killed a passing motorist. The lorry did not stop but the police got its number. The next day the police found the driver who offered them an alibi. They arrested the driver and upon investigation the alibi proved false. Lord Devlin said that the mere circumstance of driving could not furnish grounds for reasonable suspicion as to reckless driving but on the discovery of the false nature of the alibi such suspicion sufficient to justify the arrest was created and cured its bad character from that moment. Lord Devlin said: "Suspicion can take into account matters which could not be put in evidence at a l l . . . Suspicion can take into account also matters which, though admissable, could not form part of a 'prima facie' case. Thus the fact that the accused has given a false alibi does not obviate the need for 'prima facie' proof of his presence at the scene of the crime; it will become of considerable importance when such proof as there is, is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstances." In founding a reasonable suspicion a policeman may also rely on hearsay. But normally mere hearsay will probably not be enough, but this depends on the source of that information. According to Hatherly L.C. in Lister v. Perryman. iX

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