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|Judgments - O'Hara v. Chief Constable of the R.U.C
Lord Hoffmann Lord Hope of Craighead
LORD GOFF OF CHIEVELEY
I have had the opportunity of reading in draft the speeches to be delivered by my noble and learned friends Lords Steyn and Lord Hope of Craighead. For the reasons which they give I too would dismiss the appeal.
I have had the opportunity of reading in draft the speeches to be delivered by my noble and learned friends Lords Steyn and Lord Hope of Craighead. I agree with both, and would dismiss the appeal.
I gratefully adopt the account of the background to this appeal given by my noble and learned friend, Lord Hope of Craighead. The appeal can be decided on narrow grounds. The arrest was prima facie unlawful. At trial the respondent sought to justify the arrest under section 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984. So far as it is material section 12(1) reads as follows:
The constable made the arrest in connection with a murder which was undoubtedly an act of terrorism within the meaning of section 12(1) of the 1984 Act. It was common ground that subjectively the constable had the necessary suspicion. The question was whether the constable objectively had reasonable grounds for suspecting that the appellant was concerned in the murder. The constable said in evidence that his reasonable grounds for suspecting the appellant were based on a briefing by a superior officer. He was told that the appellant had been involved in the murder. The constable said that the superior officer ordered him to arrest the appellant. He did so. counsel for the appellant took the tactical decision not to cross-examine the constable about the details of the briefing. The trial judge described the evidence as scanty. But he inferred that the briefing afforded reasonable grounds for the necessary suspicion. In other words the judge inferred that some further details must have been given in the briefing. The legal burden was on the respondent to prove the existence of reasonable grounds for suspicion. Nevertheless I am persuaded that the judge was entitled on the sparse materials before him to infer the existence of reasonable grounds for suspicion. On this basis the Court of Appeal was entitled to dismiss the appeal. That means that the appeal before your Lordships House must also fail on narrow and purely factual grounds.
Plainly, leave to appeal was granted by the Appeal Committee because it was thought that the appeal raised an issue of general public importance. It was far from clear from the printed cases of the appellant and respondent what the issue of principle was. But during his oral submissions Mr. Coghlin, Q.C. on behalf of the respondent raised an issue of principle. He submitted that the order to arrest given by the superior officer to the arresting officer in this case was by itself sufficient to afford the constable a reasonable suspicion within the meaning of section 12(1). This point is of continuing relevance in relation to the Prevention of Terrorism (Temporary Provisions) Act 1989 which contains a provision in identical terms to section 12(1)(b) of the Act of 1984. But the point is also of wider importance. In the past many statutes have vested powers in constables to arrest where the constable suspects on reasonable grounds that a person has committed an offence or is committing an offence: see Moriarty's Police Law, 24th ed. (1981), pp. 19 et seq. and Appendix 9.2 of The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure, the Royal Commission on Criminal Procedure, (Cmnd 8092-1), (1981) pp. 135-138. An important modern example of such a power is to be found in section 24(6) of the Police and Criminal Evidence Act 1984. Some of the older specific powers also remain. Moreover, the point is of considerable practical importance since orders to arrest are no doubt routinely given by superior officers to constables. It is therefore necessary to examine the point in some detail.
Counsel for the respondent relied on the decision of the House of Lords McKee v. Chief Constable for Northern Ireland  1 W.L.R. 1358 in support of his submission on the point of principle. The issue was the lawfulness of the arrest of a suspected terrorist. The matter was governed by section 11(1) of the Northern Ireland (Emergency Provisions) Act 1978. It reads as follows:
Applying that provision Lord Roskill, speaking for all their Lordships observed, at p. 1361H:
The statutory provision under consideration in McKee did not require that an arresting officer must have reasonable grounds for suspicion. Moreover, the legislation was in much wider terms inasmuch as it authorised arrest for the purpose of internment. That statute was repealed in 1987 and your Lordships are concerned with a quite different statutory provision. In these circumstances Lord Roskill's observations throw no light on the proper construction of section 12(1) of the Act of 1984 which in terms provides that the power to arrest under it only arises where the constable has reasonable grounds for the necessary suspicion. Contrary to counsel's submission I would hold that it is misuse of precedent to transpose Lord Roskill's observations made in the context of the subjective requirement of a genuine belief to the objective requirement of the existence of reasonable grounds. McKee is irrelevant on the point of principle under consideration in this case. On the other hand, the decision of the House of Lords in Mohammed-Holgate v. Duke  A.C. 437 is of assistance. The House had to consider the issue whether an arrest was lawful in the context of a statutory provision which authorised arrest when a constable suspected on reasonable grounds that an arrestable offence had been committed. Lord Diplock made the following general observations, at p. 445B-E:
Lord Diplock made those observations in the context of statutes containing provisions such as section 12(1). He said that the arrest can only be justified if the constable arresting the alleged suspect has reasonable grounds to suspect him to be guilty of an arrestable offence. The arresting officer is held accountable. That is the compromise between the values of individual liberty and public order.
Section 12(1) authorises an arrest without warrant only where the constable "has reasonable grounds for" suspicion. An arrest is therefore not lawful if the arresting officer honestly but erroneously believes that he has reasonable grounds for arrest but there are unknown to him in fact in existence reasonable grounds for the necessary suspicion, e.g. because another officer has information pointing to the guilt of the suspect. It would be difficult without doing violence to the wording of the statute to read it in any other way.
A strong argument can be made that in arresting a suspect without warrant a constable ought to be able to rely on information in the possession of another officer and not communicated to him: Feldman, The Law Relating to Entry, Search & Seizure, (1986), pp. 204-205. Arguably that ought as a matter of policy to provide him with a defence to a claim for wrongful arrest. Such considerations may possibly explain why article 5(1) of the European Convention for the Protection of Human Rights and Freedoms 1950 contains a more flexible provision. It reads as follows:
It is clear from the drafting technique employed in article 5(1)c., and in particular the use of the passive tense, that it contemplates a broader test of whether a reasonable suspicion exists and does not confine it to matters present in the mind of the arresting officer. That is also the effect of the judgment of the European Court of Human Rights in Fox v. United Kingdom (1990) 13 E.H.R.R. 157, 167-169, paras. 33-35. But section 12(1), and similar provisions, cannot be approached in this way: they categorise as reasonable grounds for suspicion only matters present in the mind of the constable. In Civil Liberties & Human Rights in England and Wales, (1993), Professor Feldman lucidly explained the difference between two classes of statutes, at p. 199:
Section 12(1) is undeniably a statutory provision in the first category. The rationale for the principle in such cases is that in framing such statutory provisions Parliament has proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable: Marshall and Loveday, The Police Independence and Accountability in The Changing Constitution, 3rd ed., ed. by Jowell and Oliver, 295 et seq; Christopher L. Ryan and Katherine S. Williams, Police Discretion, 1986 Public Law 285, at 305. This case must therefore be approached on the basis that under section 12(1) the only relevant matters are those present in the mind of the arresting officer.
Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam  A.C. 942, 949. (2) Hearsay information may therefore afford a constable a reasonable grounds to arrest. Such information may come from other officers: Hussien's case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive "discretion" to arrest or not as Lord Diplock described it in Mohammed-Holgate v. Duke  A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.
Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. It would be contrary to the principle underlying section 12(1) which makes a constable individually responsible for the arrest and accountable in law. In Reg. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board  Q.B. 458, 474 Lawton L.J. touched on this point. He observed:
Such an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion. That seems to me to be the legal position in respect of a provision such as section 12(1). For these reasons I regard the submission of counsel for the respondent as unsound in law. In practice it follows that a constable must be given some basis for a request to arrest somebody under a provision such as section 12(1), e.g. a report from an informer.
Subject to these observations, I agree that the appeal ought to be dismissed.