The Gazette 1982

g a z e t t e

april 1982

officers were summoned one night to a boys' club by the youth leader to ensure that some people, who included the defendants, left before a disco started. They asked the defendants to leave but they refused and after swearing and moving the defendants returned and hit an officer. The Court of Criminal Appeal held that the actions of the police officers, in the first instance, interfered with nobody's liberty and that, even if they did, they were lawful, for it was reasonable, given the character of the defendants, to anticipate a breach of the peace if the youth leader was to be left on his own to eject the defendants. In the circumstances the policemen were fulfilling their duty to keep the peace and to take all necessary steps to that end. In another recent English case 59 a policeman was held entitled to obstruct a person who jumped a bus queue and to restrain him when he protested until the bus has moved off when only then the defendant had finally become aware that the officious bystander was, in fact, a policeman. According to the Court of Appeal the detention did not amount to arrest; it was a restraint and part of the policeman's inherent power to take reasonable action to keep the peace. So in Humphries v. Connor so a constable was held justified in removing an orange lily from a lady when the wearing of it was causing some excitement. Hayes J. expressed the origin of the rule thus: "A constable, by his very appointment, is charged with the solemn duty of seeing that the peace is preserved. The law has not ventured to lay down what precise measures shall be adopted by him in every state of facts which calls for his interference. But it has done far better; it has announced to him, and to the public over whom he is placed, that he is not only at liberty, but is bound, to see that the peace be preserved, and that he is to do everything that is necessary for that purpose, neither more or less." Unfortunately, because the law is uncertain, great difficulty has been had in formulating what the policeman cannot do and the law seems to have gone somewhat 'haywire'. In Coyne v. Tweedy 61 a lawful meeting in a public church was violently dispersed by the police because of the danger to the public peace between groups supporting rival parish priests; the authority relied on being O'Kelly v. Harvey 62 in which Palles C.B. held that a magistrate was justified in dispersing a land league meeting holding it to be an unlawful assembly, because in itself it was likely to produce damage to the peace of the neighbourhood. Palles C.B. expressly declined to decide whether authority existed if the meeting, in itself lawful, was likely to provoke a breach of the peace because of an intemperate invocation to protestants to destroy it. More recently in Thomas v. Sawkins 63 the plaintiffs had held meetings under the auspices of the Communist Party to protest against the Incitement to Disaffection Bill. Local constables were wont to attend and sit prominently in the front row. At the last such meeting the speaker in the course of an impassioned address pointed at them and said "If it were not for the presence of those people I could tell you a hell of a lot more!" Uninvited, the constables attended the next meeting and forced entry and, upon being asked to leave and refusing, a slight scuffle ensued. Lord Hewart C. J. sweepingly conferred on constables a right of entry to prevent a crime. Avory and Lawrence J.J. were of the view that a breach of the peace was anticipated 81

"Information given by one person of whom the (policeman) knows nothing, would be regarded very differently from information given by one whom he knows to be a sensible and trustworthy person. And the question whether or not a reasonable man would or would not act upon the information must depend to a great degree on the opinion to be formed of the position and circumstances of the informant and of the amount of credit which may be due under those circumstances to the person who thus conveyed the information." The converse of this is that the police must exercise great care in arresting a person because one party to a crime has implicated another; and suspicion so attaching will normally only be reasonable where there is a corroboration by ascertained facts or the informant has shown himself trustworthy 52 . An anonymous communica- tion is not enough and in the United States it must at least be borne out by some ascertained facts actually implicat- ing the person the police propose to arrest 53 . Double hearsay is obviously a less reasonable ground and in all hearsay cases there exists a rule, probably unknown to the police, that their reasonable suspicion may be destroyed if, at the moment of proposed arrest, the person under suspicion gives a reasonable explanation in circum- stances where the policeman cannot contradict it. 54 In justifying arrest it is proper for the police to consider the record of the suspect. His suspicious behaviour is also relevant but not his refusal to co-operate with the police inquiries, for this is the right of every citizen whatever his duty. 55 A balancing factor in this freedom of the police to rely on seemingly tenuous grounds to justify the reasonableness of their suspicion is their positive duty to be assiduous in protecting the liberty of the citizen. This of course further complicates matters. O'Higgins C. J. in D.P.P. v. Madden 6 was forceful in pointing out that as a branch of the executive the duty of the police was to protect and vindicate rights as well as to detect crime. Thus the police should not leap to arrest when further enquiries might establish the innocence of a suspect. The duty was well put by Scott L. J. in Dumbell v. Roberts 57 when he said:- "(The police) may have to act on the spur of the moment and have no time to reflect, and be bound, therefore, to arrest to prevent escape; but where (there is) no danger of the person, who has 'ex hypothesi' aroused their suspicion that he is probably the "offender", attempting to escape, they should make all presently practicable inquiries from persons present or immediately accessible who are likely to be able to answer their inquiries forthwith. I am not suggesting a duty on the police to try to prove innocence; that is not their function, but they should act on the assumption that their 'prima facie' suspicion may be ill-founded." Arrest at common law — to prevent a breach of the peace: The second great power of the constable at common law is that to prevent a breach of the peace. A policeman may do any act in lawful assistance of a private person. He will be bound to do such an act, and will consequently be acting in the execution of his duty, if it is necessary to assist in keeping the peace. Thus in Coffin v. Smith 58 two police