The Gazette 1986

GAZETTE

JANUARY/ FEBRUARY 1986

"Suppose he never commits the Crime?" — an examination of the new power of detention for questioning by Bertie Meh i gan, B . C . L ., LL.B. The Queen:- "There's the King's messenger. He is in prison now being punished; and the trial doesn't even begin 'till next Wednesday; and of course the crime comes last of all. " A lice:- ' 'Suppose he never commits the crime?'' ('Alice in Wonderland' by Lewis Carroll.)

F ollowing widespread criticism for its apparent inability to deal with an alleged crime-wave, the Oireachtas has responded by passing the Criminal Justice Act, 1984. This legislation has evoked controversy in a number of respects but none more so than in relation to the power vested in the gardai by section 4 of the Act 1 . Briefly, section 4 provides that the gardai may detain a person whom they have "arrested" if reasonable grounds exist for believing that such detention is neces- sary for the proper investigation of the offence. The initial period of detention is set at six hours but it may be extended a nd / or suspended with the result that a suspect may potentially be held for a total of twenty hours. Section 4 is indicative of a tendency right across the political spectrum to increase police powers in an attempt to cope with an increase in the crime-rate. It is remarkably similar to that introduced in Scotland under the Criminal Justice (Scotland) Act, 1980, and reflects a strategy which has been followed in France through the 'Securite et Liberie' laws of 1981 and in England through the Police and Criminal Evidence Act, 1984. Given the reactionary treatment of the crime issue by certain sections of the media and the inevitable opportunism of a number of politicians when dealing with the matter, it is hardly surprising that no concerted oppos- ition to the new power has been mounted. Nevertheless, since section 4 essentially introduces on a general scale a power which heretofore was reserved for "terrorist" offences it is undeniable that serious incursions on human rights and in particular the rights of particular sections of society are immediately possible. One such human rights issue is the reviewability or otherwise by the Courts of the exercise of the new powers which the gardai are to be given. Are the gardai to be vested with a power which, in reality, is unreview- able and thus in contravention of the right to personal liberty? The essential dilemma is focused on the much utilised yet ill-defined concept within criminal procedure of 'reasonable suspicion'. Traditionally, arrest based on reasonable suspicion has been seen as the first step in the invocation of the criminal process which ultimately terminates with the trial of the accused and a determination of his or her guilt. Thus, arrest and the judicial process are inexorably linked so that the, albeit understandable, inadequacies of the notion of reasonable suspicion are acceptable. Since section 4 permits detention for questioning and removes the guarantee of judicial participation in every case, the quest for a definition of

'reasonable suspicion' becomes more important. Before concentrating on this matter of reasonable suspicion the issue of potentially divergent stances taken in this jurisdiction compared with others, specifically England, when dealing with the concept is worth exam- ining. In Ireland, due to the existence of Article 40.4.1 ° of the Irish Constitution, the reasonable suspicion requirement might be viewed as a practical manifest- ation of the protection afforded to the liberty of the individual. As a result, the liberty of the individual is equally as important as the security of society generally. The rights of the individual as such are recognised as matters worthy of protection. This, however, is not necessarily the case in England. Many of the liberties, powers and immunities recognised there originated not out of any concern for the intrinsic value of rights but more as a response to the relatively weak position of the defendant visa vis the Crown. It is proper that the rules of evidence and procedure should afford greater protection to the individual defended in order to counterbalance the greater resources of the prosecutor. Indeed, it has been argued in England that a radical review ought to take place in the criminal justice sphere because of the emergence of a comprehensive system of legal aid which has tended to restore the balance of resources between both sides. Given the propensity of the Oireachtas to substantially re-enact English legislation in this country and the tendency of the Irish judges to follow English precedent, the differing stress that should be placed on the value of rights as such may all too often be ignored. Yet, it is a factor which must be brought into account within the sphere of criminal justice where incursions on human rights are more likely than in other areas of the law. Indeed, the power to arrest on reasonable suspicion is representative of the implementation of many standards required by the law through the delegation of discretion- ary powers to officials which must be exercised within particular frontiers and which are reviewable by the courts. In the administrative field, the East Donegal Co- op case 2 conceivably marks the apex of such discretion- ary powers. Under the relevant Act, the Minister for Agriculture was given an extremely wide discretion in granting and revoking licences for cattle marts. The Act was challenged (inter alia) on the ground that it infringed the constitutional guarantee of equality since the Minister was essentially free to discriminate. The Supreme Court reversed a decision of the High Court and considered that since the Minister would have to exercise his dis- cretion within the parameters of constitutional and

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