The Gazette 1986

GAZETTE

JANUARY/ FEBRUARY 1986

administrative law, this was sufficient protection for the rights of the individual. However, this perception of discretionary powers has not been unreservedly accepted within the criminal justice sphere. In 1981 in King-v- A.G.\ the Supreme Court examined the Vagrancy Act 1824 (as amended) which gave the police wide discretionary powers to arrest vagrants. In fact, persons in objectively the same position might or might not be arrested according as to whether the police did or did not suspect them. The court found this law to be unconstitutional basically because of the ease with which such discretion could be abused. The case demonstrates a divergence of attitude in the court when considering discretionary powers within the criminal justice sphere and also emphasises the value attributed to the right to personal liberty. The distinctive approach adopted by the Irish courts when dealing with criminal justice matters has not, however, been evident in England. The trend there has been merely to distinguish between different classes of executive discretion and to ignore the value of the right interfered with. Thus, in the 1984 House of Lords decision in Holgate-Mohammed -v- Duke 4 , a detective constable considered that he had reasonable cause for suspecting that the appellant had stolen some jewellery but did not have sufficient evidence to secure a conviction. He decided to arrest the appellant in the belief that she would be more likely to confess to the theft if she were questioned at the police station rather than at home. She was subsequently released and took an action claiming false imprisonment on the basis that the arrest was, in the circumstances, an unreasonable exercise of discret- ionary power. The House of Lords ruled against the appellant and based its decision upon the hallowed case of Associated Provincial -v- Wednesbury* . Since the police officer exercised an executive discretion, this discretion could only be questioned under well-established principles applicable to such discretionary powers. 1 herefore, since the bona fide belief on the part of the police officer that the appellant might submit and confess if questioned at the police station was not an extraneous circumstance, the discretion was reasonably exercised. The divergent approach which ought to exist in Ireland because of the existence of a written constitution might be looked upon as merely a matter of theoretical constitutional law. Indeed, given the recent public hysteria in relation to the crime issue, such would be all too understandable. Nevertheless, it may be forgotten that an arrest is a serious intrusion on one of the most fundamental human rights, the right to liberty. The consequences, for the individual may be acute as was pointed out by Justice Thurgood Marshall in a 1976 decision of the U.S. Supreme Court: "Being arrested and held by the police, even if for a few hours, is for most persons both awesome and frightening . . . An arrest abruptly subjects a person to constraints and removes him to unfamiliar and threatening surroundings . . . The security of the individual requires that so abrupt and intrusive an authority be granted to public officials only on a guarded basis." 6

Reasonable Supsicion: Because of its very nature, a precise definition of this concept is as impossible to enunciate as it is undesirable to do so. It is quite acceptable that a police officer be allowed a degree of latitude when deciding whether an arrest is appropriate. But the fear of obstructing the work of the police has led many judges to the conclusion that it is better left undefined and unfettered. There is no doubt but that reasonable suspicion must always contain an element of vagueness and discretion but this does not mean that it must always be examined 'in vacuo'. There are parameters within which it must be seen to operate. Generally, the goal or objective of arrest based on reasonable suspicion is to charge the suspect, which brings into play the consequent judicial overview. The police officer is forced to adhere to the standard of reasonableness; there is an obligation to justify the arrest. Because of this, the inherent shortcomings of reasonable suspicion seem to have been accepted. However, where the objective is the questioning of the suspect, the reasonableness or othewise of the suspicion is not necessarily reviewed. Given the potential for abuse of human rights within such a scenario, the quest for a definition or an outline of the parameters of reasonable suspicion takes on a new importance. At the outset, two relatively acceptable points may be dealt with. Firstly, it is generally accepted that the onus is on the arresting garda to establish that reasonable grounds for the arrest exist 7 . This is rationalised by the fact that the decision to arrest is taken by the garda, i.e. he is the positive actor and may be called upon to justify his actions. Secondly, the generally held view is that the personal suspicion of the arresting garda is not, of itself, sufficient to warrant arrest 8 . Again, this is reasonable since alternative criteria would be purely arbitrary and dependent simply on the prejudices of individual police- men. These points deal only with the outer limits of the standard of reasonableness and are of minor assistance in ascertaining the precise standard envisaged. This standard, in turn, must be influenced by the dictates of the Irish Constitution and its protection of human rights. Specifically, the Article 40 protection of the right to personal liberty demands that the reasonable suspicion criterion be understood at least in a general sense. Yet, not only is there a lack of Irish case-law but one is forced to deal almost exclusively with English jurists and case-law when considering the topic. Again, since these materials are essentially devoid of a constitutional perspective they may not be sufficient for Irish 'human rights' purposes. A useful starting point might be J. L. Lambert's des- criptions of the term when he states t h a t. . . "Given the variety of circumstances giving rise to reasonable suspicion, a comprehensive definition is impossible but it should at least be made clear that reasonable suspicion pre-supposes the existence of some objectively verifiable fact or facts which cause the reasonable police officer to form the suspicion in question". 9 This statement is useful because it illustrates or sums- up much of the academic literature on the matter. The descriptions put forward necessarily entail an under-

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