Paper in Respect in the Law of Arrest
The Law of Arrest
This paper is an outline of the traditional legal concepts surrounding the Law of Arrest. There is some emphasis on the normal controversies that tend to arise in respect of arrest and detention of suspects during the course of criminal investigation and certain aspects of Criminal Justice Acts 2006 and 2007. In addition, the assertion on the part of the Garda Síochána of “informer privilege” is also considered.
Reasonable Cause
At common law an arrest could take place on the basis of a reasonable suspicion on the part of the arresting Garda that a person had committed a felony. Of course, the distinction between felony and misdemeanour was abolished by Section 3 of the Criminal Law Act, 1997. There are other powers of arrest which allow an arrest to take place on the basis of “reasonable cause” or as in traffic offences when a Garda is “of opinion” that a particular state of affairs exists. Indeed, most arrests now occur under the provisions of Section 4 of the Criminal Law Act, 1997 on the basis that the arresting Garda has reasonable cause to believe a person to be guilty of an offence.
Under Section 30 of the Offences Against the State Act, 1939 what was required was a “suspicion” of involvement in the commission of a scheduled offence. Decided cases imported into the power of arrest in whatever form it is stated a requirement of objectivity in the form of reasonableness and bona fidesin the form of an honest belief in the existence of a particular state of affairs. This takes the threshold for the test above “mere suspicion”. The test formulated by the Privy Counsel in Shaaban Bin Hussein v Chong Fook Kam [1970] A.C. 942 is a useful one:
“The circumstances of the case must be such that a reasonable man acting without passion or prejudice would fairly have suspected the person of having committed the offence … suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove”. Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end.”
Reasonable suspicion/cause therefore is a lower standard than a prima facie case. Reasonable suspicion can take account of matters which are not admissible in evidence such as hearsay. However, “mere suspicion” would not be sufficient.
The reasonable suspicion upon which an arrest is based should be one that is personal to the arresting Garda: Walsh v Fennessy [2005] 3 I. R. 516. The fact that an order is given to a Garda by a superior officer to carry out an arrest would not of itself give rise to sufficient suspicion to justify an arrest. It could be taken into account in determining whether the arresting Garda had grounds for a reasonable suspicion but there has to be some element other than a bare order to carry out the arrest. Reviewing the various authorities Kearns J., said:
“Without in any way trying to fix or lay down a template of what is appropriate in all cases, these authorities clearly demonstrate that the relevant suspicion is that of the Arresting Officer alone. It is not the Arresting Officer’s subjective belief which is the critical or determining factor. It is a suspicion which, to be found not unreasonable, must find some objective justification from the surrounding circumstances and the information available to the Arresting Officer. It is a suspicion which in my view may be informed by a direction to arrest given by a superior officer, particularly in the circumstances of this case where the direction must be seen against the background of all the other background circumstances found to have been proven at the time the direction to arrest was given. Even if a direction alone is never to be taken as sufficient, and I do not wish to be taken as so holding or deciding, the authorities establish that something quite small in addition will suffice to constitute the material from which a bona fide and reasonable suspicion may be formed. It may be a briefing session or document. It may be hearsay material coming by way of confidential information. It may be no more than a short verbal account given by a Superior Officer to the Officer who will make the arrest. It may also derive or be inferred from the surrounding circumstances as this Court recently emphasised in the People (Director of Public Prosecutions) v Tyndall [2005] 1. R. 593” [PP542-3).
In the earlier authority of the People (D.P.P.) v Quilligan [1986] I.R. 495, it was held by the Supreme Court that the suspicion required under Section 30 of the Offences Against the State Act, 1939 should be “bona fide held and not unreasonable”. Making this ruling the Supreme Court relied upon the State (Lynch) v Cooney [1982] I.R. 337 a case in which a power had been vested in the Minister for Post and Telegraphs under the Broadcasting Act to make a particular order if he was of a certain “opinion”. Henchy, J., said that:
“When the Oireachtas conferred upon a decision-making body or person a power affecting personal rights conditional on that body or person reaching a prescribed opinion or conclusion based on a subjective assessment in this case an opinion, it is to be presumed that when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they are to be gathered from the statutory scheme or design. This means, amongst other things, not only that the power must be exercised in good faith, but that the opinion or other subjective conclusion set as a pre-condition for the valid exercise of the power must be reached by a route that does not make the exercise unlawful – such as by misinterpreting the law, or by misapplying it through taking into consideration irrelevant matters of fact, or through ignoring relevant matters. Otherwise, the exercise as a power will be held to be invalid for being ultra vires”.
The standard of reasonable suspicion envisaged as a protection against arbitrary unreasonable arrest was addressed by Lord Justice Scott in Dumbell v Roberts [1944] 1 ALL E.R. 826:
“The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably”. Put it another way: “The question is whether the accused is marked out for such suspicion that it is reasonable to arrest him”. (See Arrest for Felony at Common Law [1954] Crim. L.R.408.
Formalities of Arrest
The formalities of a lawful arrest otherwise than under warrant as set out in Christie v Leachinsky [1947] A.C.578 have been adopted and applied in this jurisdiction since the Supreme Court decision in Re O’Laighleis [1960] I.R. 93. Essentially, a person is entitled to know on what charge or on suspicion of what crime he is arrested. If a person is not so informed but is nevertheless arrested, the Garda may be liable for false imprisonment. This requirement may not apply if the circumstances are such that the person arrested must know the general nature of the alleged offence for which he is detained. Technical and precise language need not be used, the question is whether as a matter of substance the person knows the reason why he is arrested and why he is being deprived of his liberty. The reason of course, is obvious, “arrest must be for a lawful purpose; and since no one is obliged to submit to an unlawful arrest the citizen has a right before acquiescing in his arrest to know why he is being arrested”. (O’Laighleis) This matter was considered in D.P.P. (Cloughley) v Mooney [1993] I.L. R. M. 214 and in People (D.P.P.) v Quilligan where Mr. Justice Walsh said that “When a person is arrested under S.30 as in any other arrest he must be informed of which of the many possible offences he is suspected unless he already has that information”. (page 508).
Challenges to Arrest
The challenge to arrest can be made in a number of ways. An arrest may be rendered unlawful by reason of a failure to fulfil the conditions precedent to a lawful arrest, including the relevant formalities. It can be challenged by way of civil proceedings claiming damages for false imprisonment. If the tainted nature of the arrest becomes apparent application can be made to the High Court for an inquiry as to whether the citizen has been deprived of his liberty in accordance with law. The more usual context in which a challenge is mounted in the course of a criminal trial relates to the admissibility of evidence which is alleged to be unconstitutionally obtained by reason of an unlawful arrest or unlawful detention consequent upon an unlawful arrest. In that context, the duty is on the prosecution to prove beyond reasonable doubt that the arrest and detention of the accused were lawful. In effect, however, if a sensible challenge is to be mounted to the arrest it will require a challenge to the state of mind of the arresting officer at the time of the arrest. There are a number of issues that arise from time to time in the course of such a voir dire. However, it should be recognised that the threshold for the establishment of a reasonable suspicion on the part of the arresting Garda is quite low and for the most part the challenge to the existence of a reasonable suspicion in the Garda’s mind will normally be difficult to mount successfully. One is focussing on the pre-arrest investigation and the information concerning that investigation that came into the possession of the arresting Garda. As already noted, in the authorities, information can come second hand from other members of An Garda Síochána involved in the investigation or from a superior officer. Once the arresting officer is possessed of that information he is entitled to form his own reasonable suspicion or find reasonable cause on the basis of what he has been told in order to make an arrest.
In the course of a criminal trial the only “sanction” that exists in relation to unfair, illegal or unconstitutional acts on the part of the investigators lies in the exclusionary rule. A very high price is paid by an investigation if Gardaí commit a deliberate and conscious violation of an accused’s constitutional rights by way of unlawful arrest and detention. The evidence procured as a result of such breach is the subject of an absolute exclusionary rule as formulated in the People (D.P.P.) v Kenny [1990] 2 I.R. 110 and the People (D.P.P.) v Healy [1990] 2 I.R.73. This absolute exclusionary rule has been the subject of some adverse judicial comment Walsh v Cash (unreported Charleton J., 28th March 2007). This judgement also summarizes the law in respect of reasonable suspicion/cause as earlier discussed.
Use of Informants
It is clear from the case law that it is entirely appropriate for a Garda to carry out an arrest on the basis of confidential information which he has received and considered and which gives rise to a reasonable cause for suspicion prior to carrying out the arrest. It is important to realise the limitations this places upon any attempt to inquire into this confidential information. Informants, by their nature, particularly if involved in crime, are treacherous, deceitful, dishonourable and above all criminal in their mode of life. They are engaged as informants out of pure self-interest and can be presumed usually not to be acting out of civic duty. It gives rise to an important contradiction in criminal law. The Gardaí rely upon information from criminals to implicate other criminals. Of course the criminal in giving information places his life or well being in jeopardy unless his identity is protected. This means that he must be protected from an inquiry into the source of the information on which the arrest is based. This information is said to be enhanced if the confidential source has proved to be “reliable” in the past. This also is a matter clouded in secrecy.
The law was set down in Attorney General v Briant:
“The rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for 50 years, and although it may seem hard in a particular case, private mischief must give way to public convenience … and we think a principle of the rule applies to the case where a witness is asked if he himself is the informer.” [1846] 15M.W.169.
The exception to this arises if the Court is of the opinion that the disclosure of the informant’s identity is necessary in order to demonstrate the accused’s innocence. The principle that an innocent man should not be convicted when his innocence can be proved must prevail over the protection of the informant’s identity (Marks v Beyfus [1890] 25 Q.B.D.494.).
From the defence perspective the ability to look behind the arrest is enhanced if documents are said to exist in relation to information which led to the arrest. The prosecutor in any criminal trial has a duty to disclose all relevant material to the defence and to accommodate informant privilege and the innocence at stake exception. Where a controversy arises this may be resolved by an inspection of a document by the trial judge but this is not absolutely necessary in every case (D.P.P. v Special Criminal Court [1999] 1I.R.60). Ultimately a trial judge should determine if a doubt arises, as to whether a particular document should be disclosed, if necessary, by examining the documents. Of course, the informer may not be a criminal at all: indeed the privilege has been extended in England on occasions to informants to the N.S.P.C.C. concerning the alleged abuse of children. In Ireland it has been extended to those having statutory powers to investigate and prosecute various laws outside ordinary police powers.
It is likely that if an informer is used by a member of An Garda Síochána and is a tried source in the past that the Garda’s relationship with the informer is the subject of a written record within An Garda Síochána. How informers are handled and information is processed is said now to be the subject of a new protocol within An Garda Síochána. An informer is now regarded as “Covert Human Intelligence Source (CHIS).“ This embraces all sources of information to An Garda Síochána described as casual contacts, informants and agents. There is no doubt that every police service in the world operates on the basis of gathering information from informants. This necessarily involves contact with people at various levels of criminality and on the peripheries of criminal activity. This often yields information that will lead to a better understanding of the operations of certain criminal gangs or organisations and can lead to the prevention of crime as well as its detection and resolution. It is highly important to policing. Of course the protection of sources is also highly important to this aspect of policing. It is literally a matter of life or death. Having said that, this is a system that is open to abuse.
The old and new method of informer handling was examined by the Morris Tribunal in its first report of 2004. (Report on Explosives “Finds” in Donegal/ Terms of Reference (e) Chapter 13). At that stage there was no manual which governed the handling of informers within An Garda Síochána. The Association of Garda Sergeants and Inspectors and the Garda Representative Association at that time were unaware of any changes that had being brought about at a higher level in respect to the handling of informers in the preceding three years. The Tribunal determined that it must have been clear to anybody using the system then employed by crime and security at Garda Headquarters that there was no great scrutiny or assessment of the relationship between informers and members of An Garda Síochána by Garda superiors or indeed by crime and security itself. A document was produced to the Tribunal over which the Garda Síochána claimed privilege, which outlined changes said to have been made in the late 1990s. The Tribunal recommended that a full review take place of the proposed changes to the system outlined in this document and its robust and full implementation. It suggested that the handling of informers could be improved in line with best police practice the United Kingdom, for example, as enshrined in statute and subject to Home Office circulars. The Tribunal determined that crime and security had not come to grips with the new system and that it had not been effectively launched. The Garda Síochána themselves at ranks lower than inspector had not been informed of the new procedure for the registration of informers. Old forms were still in use. The Tribunal recommended an urgent study of international models and formed the view that the new system had been hurriedly cobbled together.
Other jurisdictions recognise the dangers of the informer police relationship. The relationship needs to be supervised in order to ensure continued value and legitimacy. If agents are directed to carry out a task it is recommended that they work under the authority and direction of experienced handlers. In Canada two handlers are usually appointed to an informer. Various safeguards are employed. Before an informer or an agent is used by the police service, an extensive background check is conducted. This includes previous activity as an informer, the informer’s criminal record, his/her personal history and apparent motivation, the ability to provide information about or to penetrate a criminal or subversive organisation, a sense of the informer’s potential, and issues that may be relevant to his/her protection or indeed ultimate relocation. The supervisors regularly review the informer handler relationship. Formal debriefing habitually takes place. Intelligence received from a source is assessed on its own merits and not on the basis only of what has previously been furnished by that source. It is well understood that a person who was reliable in the past may prove to be unreliable on another occasion. Debriefing reports are obtained to enable intelligence to be properly evaluated and disseminated and to make a record available of information that has been provided. Records of course, must be protected. The review of the informer handler relationship can result in the police dispensing with the informer’s services if he/she is shown to be consistently unreliable or in some way treacherous or not following directions. Indeed in some instances inappropriate social and sexual relationships have developed between informers and their handlers, in Canada.