Judgments - O'Hara v. Chief Constable of the R.U.C  continued

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LORD HOFFMANN


My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Steyn and Lord Hope of Craighead. I agree with both and I too would dismiss the appeal.



LORD HOPE OF CRAIGHEAD


My Lords,

    At about 6.15 a.m. on 28 December 1985 police officers entered the appellant's house at 72 Duncreggan Road, Londonderry and conducted a search of the premises. At the conclusion of the search, at about 8.05 a.m., they arrested the appellant under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984. They took him to Castlereagh Police Office, where the police questioned him in a series of interviews. On 29 December 1985 an order was made by the Secretary of State under section 12(4) of the Act of 1984 extending the period of 48 hours provided by that sub-section by five days. On 13 January 1986 the appellant was released without being charged either then or subsequently with any offence. Later that year he brought an action of damages against the respondent for various tortious acts said to have been committed against him by the police officers, including wrongful arrest, assault and unlawful confiscation of documents.

    On 14 September 1990, following a trial which took place on 16 and 17 January 1989, the learned trial judge, McCollum J., in a reserved judgment dismissed all the appellant's claims except his claim for the unlawful confiscation of documents. He ordered the documents to be returned to the appellant and that a sum of £100 be paid to him as compensation for their confiscation. He was not satisfied on balance of probabilities that the appellant had been assaulted during his detention at Castlereagh Police Office. No appeal has been taken against his decision on either of these points. In regard to the claim for wrongful arrest, the trial judge held that the appellant's arrest had been lawful. This was because he was satisfied on the evidence of Detective Constable Stewart, who was the arresting officer, that he was entitled to arrest the appellant without warrant under section 12(1)(b) of the Act of 1984 because he had reasonable grounds for suspecting the appellant to be a person who had been concerned in the commission, preparation or instigation of acts of terrorism. On 6 May 1994 the Court of Appeal (Kelly L.J., Pringle and Higgins JJ.) (unreported) upheld the decision of the trial judge and dismissed the appeal. The appellant has now appealed with leave to this House.

    The Prevention of Terrorism (Temporary Provisions) Act 1984 expired on 21 March 1989 and has been replaced by the Prevention of Terrorism (Temporary Provisions) 1989. Section 12(1) of the 1984 Act-see now section 14(1) of the Act of 1989-is in these terms:

     "Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be -

     (a) a person guilty of an offence under section 1, 9 or 10 above;

     (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies;

     (c) a person subject to an exclusion order."

    Detective Constable Stewart said in his evidence that at 5.30 a.m. on 28 December 1985 he attended a briefing at Strand Road Police Station. The purpose of the briefing was to mount an operation to search houses and to arrest a number of people in connection with the murder of Mr. Kurt Koenig about two months previously. It was common ground that the murder of Kurt Koenig, which had been committed in Londonderry in November 1985, was an act of terrorism within the meaning of section 12(1) of the Act of 1984. The briefing was conducted by Inspector Brown and it was attended by a number of other police officers. The purpose of the search was to look for weapons or other evidence. Detective Constable Stewart went with a search party to 72 Duncreggan Road to carry out a search there, to arrest the appellant and to convey him to Castlereagh Police Office. He said that his reasonable grounds for suspecting that the appellant was involved in the murder were based on the briefing which he had received, in the course of which he was told that the appellant had been involved in the murder and was also told to arrest him. When he arrested the appellant under section 12(1)(b) of the Act of 1984 he told him that he suspected him of having been concerned in the commission, preparation or instigation of acts of terrorism. In cross-examination he said that he had no other basis for the suspicion apart from what he had been told at the briefing, and that he did not specify any particular offence when he was arresting the appellant. Neither party sought to elicit from him the details of the information which the briefing officer had disclosed to him and the briefing officer, Inspector Brown, did not give evidence.

    The learned trial judge noted that the burden of proving that the arrest was lawful was on the respondent. He found on the evidence that burden had been satisfied, for the reasons expressed in the following passage of his judgment:

     "I would not wish to lay down the proposition that reasonable suspicion could in all circumstances be based on the opinion of another officer expressed without any supporting allegations of fact. But it does seem to me that a briefing officially given by a superior officer would give reasonable grounds for suspicion of the matters stated therein. The fact that I have such scanty evidence of the matters disclosed to Detective Constable Stewart means that I am only just satisfied of the legality of the arrest, but I am fortified in my view by the lack of detailed challenge in cross-examination as to the nature of the information given to him."

    The judgment of the Court of Appeal was delivered by Kelly L.J., who said that, although the information given at the briefing to the arresting officer was "scanty," to use the words of the learned trial judge, it was sufficient to constitute the required state of mind of an arresting officer under section 12(1)(b) of the Act of 1984.

    My Lords, it is important to observe that the position of the arresting officer was not simply that he had been told to arrest the appellant. Nor was it that he had simply been told that the appellant had been concerned in the commission, preparation or instigation of acts of terrorism. His position, as stated by him in evidence, was that he suspected the appellant of having been concerned in such acts, and that his suspicion was based on the briefing which had been given to him by his superior officer. The trial judge accepted the arresting officer's evidence on both points. The question is whether he was entitled also to hold that the arresting officer had reasonable grounds for this suspicion, as the only evidence about these grounds was what the arresting officer himself said about them in the witness box.

    The appellant maintains that section 12(1)(b) requires proof not only that the arresting officer had the suspicion which that subsection requires but also that the reasonable grounds on which he based his suspicion existed in fact. It is said that, in order to prove that the alleged grounds were reasonable in the objective sense, the respondent must prove that reasonable grounds for the suspicion did exist, not only that the arresting officer had knowledge of them at the time of the arrest. As he developed these arguments, however, Mr. Kennedy accepted that it was not necessary for a prima facie case to be established, nor was it necessary for the evidence about the grounds for the suspicion to disclose the sources of that evidence. He accepted that the police were entitled to proceed upon hearsay evidence, and that evidence which could give rise to a reasonable suspicion might turn out later to be wrong. But he said that it was necessary nevertheless for the court to be given some evidence, in addition to that of the arresting officer, to enable it to hold that reasonable grounds existed. The objective test required proof of something more than what was in the mind of the arresting officer.

    Mr. Kennedy based his submissions on Lord Atkin's well known observation in his dissenting speech in Liversidge v. Anderson [1942] A.C. 206, 245 that one of the pillars of liberty in English law is the principle that "every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act." He referred also to Dallison v. Caffery [1965] 1 Q.B. 348, 370, where Diplock L.J. said:

     "Since arrest involves trespass to the person and any trespass to the person is prima facie tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest."

    He described the powers given by section 12 of the Act of 1984 as unique, especially in view of the length of time the suspect could be detained in custody after his arrest. He drew our attention to the fact that in Ex parte Lynch [1980] N.I. 126, 132G-133B Lord Lowry L.C.J. described the observations of the Supreme Court when considering a reference by the President of Ireland in the Emergency Powers Bill 1976 (article 26 of the Consitution) [1977] I.R. 159 as an impeccable statement of the rules which ought to be applied both in interpreting the meaning of emergency legislation which abridges the liberty of the subject and in judging the validity of acts purporting to be done under its authority. What O'Higgins C.J. said, at p. 173, under reference to the powers to be given by section 2 of that bill, was this:

     "A statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed. Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section."

    It is plain that section 12(1) of the Act of 1984 makes provision for the circumstances in which a person may be deprived of his liberty. But I do not accept Mr. Kennedy's suggestion that it is a unique provision, notwithstanding the power in subsection (4) which enables the period of detention to be extended by five days after the initial period of 48 hours. Powers of arrest or detention which may be exercised where a constable has reasonable grounds for suspecting that a person is committing or has committed an offence are far from unique in our legislation. Section 24(6) of the Police and Criminal Evidence Act 1984, for example, provides that where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. A similar provision is to be found in section 14(1) of the Criminal Procedure (Scotland) Act 1995, which provides that where a constable has reasonable grounds for suspecting that a person has committed or is committing an offence punishable by imprisonment, the constable may detain that person for questioning at a police station.

    Provisions to the same effect have been part of our law for more than half a century: see, for example, section 10(2) of the Children and Young Persons Act 1933 and section 7(3) of the Public Order Act 1936. Other familiar examples of similar legislation affecting the liberty of the person are to be found in section 23(2)(a) of the Misuse of Drugs Act 1971, which enables a constable to search any person whom he has reasonable grounds for suspecting to be in possession of a controlled drug and to detain him for the purpose of searching him, and section 6(1) of the Road Traffic Act 1988 which enables any constable to require a person whom he has reasonable cause to suspect of driving or attempting to drive a motor vehicle with alcohol in his body to provide a specimen of breath for a breath test and, in the circumstances provided for by subsection (5), without warrant to arrest him. It is now commonplace for Parliament to enable powers which may interfere with the liberty of the person to be exercised without warrant where the person who exercises these powers has reasonable grounds for suspecting that the person against whom they are to be exercised has committed or is committing an offence. The protection of the subject lies in the nature of the test which has to be applied in order to determine whether the requirement that there be reasonable grounds for the suspicion is satisfied.

    My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

    This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.

    This approach to the wording of section 12(1) of the Act of 1984 is consistent with authority. In Dallison v. Caffery [1965] 1 Q.B. 348, which preceded the enactment of section 2(4) of the Criminal Law Act 1967, the arrest had been effected in the exercise of the common law power. Diplock L.J.'s description, at p. 371, of the test to be applied does however provide a useful starting point for the examination of the power which has been given by the statute. What he said was:

     "The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probable cause."

    In McKee v. Chief Constable for Northern Ireland [1984] 1 W.L.R. 1358 the appellant had been arrested by the constable under section 11 of the Northern Ireland (Emergency Provisions) Act 1978. That section provided, not that the constable had to have reasonable grounds for suspecting, but simply that: "Any constable may arrest without warrant any person whom he suspects of being a terrorist." It was held that the suspicion had to be honestly held, but that it need not be a reasonable suspicion. Section 11 of that Act was, of course, subsequently repealed and replaced by section 12 of the 1984 Act, which requires that the suspicion be based on reasonable grounds. Nevertheless, I believe that despite the difference in wording, Lord Roskill's words, at pp. 1361H-1362A, when he emphasised that what matters is what was in the mind of the arresting officer, remain relevant:

     "On the true construction of section 11(1) of the statute, what matters is the state of mind of the arresting officer and of no-one else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer. The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded. It is, in my view, not legitimate in the light of the learned trial judge's findings as to Graham's state of mind at the time of the arrest, to seek to go behind that finding and deduce from Detective Constable Moody's evidence as to questioning which took place some time after the arrest what Jackson's state of mind may have been when he gave Graham his instructions. It is Graham's state of mind that matters and that alone."

    In Hanna v. Chief Constable, Royal Ulster Constabulary [1986] N.I. 103, 108 Carswell J., as he then was, said:

     "It was argued that because a person who wrongfully directs another to arrest a third is liable in tort to the arrested person for damages, it follows that the existence and reasonableness of the suspicion of the senior officer who gave orders to the arrestor to arrest the plaintiff must be relevant. This is in my view a non sequitur. It is of course correct that if A orders B (whether B be a policeman or not) to arrest C, it is an imprisonment by A as well as B, and if it is unjustified C can sue A for false imprisonment: see such cases as Wheeler v. Whiting (1840) 9 C & P. 262. I do not consider that it follows that one has to consider in the context of arrests under section 12 of the Act of 1984 the mind of anyone but the actual arrestor. In my view the wording of section 12(1) is intended to refer only to the arrestor himself, and it is his suspicion alone which is material, and not that of any person by whom he was given instructions."

    At p. 109H he said that he was satisfied that in considering the existence of a reasonable suspicion he should look solely at the evidence relating to the mind of the arresting officer.

    He returned to the same point in Brady v. Chief Constable of the Royal Ulster Constabulary, 15 February 1991, (unreported). In that case the plaintiff who had been arrested in Londonderry on the same day as the appellant in the present case had also claimed damages for unlawful arrest and false imprisonment. The arresting officer said that he had attended a briefing by a police superintendent in which he was instructed to arrest the plaintiff at his home address and that the reason for his arrest was that he had been involved in the murder of Kurt Koenig. Detailed evidence was given in that case by senior CID officers about their possession of information about the part which the plaintiff was believed to have taken in the murder. Carswell J. made this comment on the evidence:

     "If it were material, I should hold that each reasonably suspected that [the plaintiff] had been involved in planning the murder. Since it is the arresting officer's suspicion which alone is relevant, however, I consider that the belief of those other officers does not operate to strengthen or weaken the genuiness or reasonableness of the former's suspicion except insofar as it may tend to confirm or contradict his account of what he was told at the briefing. Constable McGonigle was told by a senior officer at an arrest briefing that the plaintiff had been involved in Koenig's murder. I accept that the constable believed what he was told and I hold that he entertained a genuine suspicion that the plaintiff had played some part in the murder. I also hold that it was reasonable for Constable McGonigle to form that suspicion in the circumstances. An arrest operation had been planned, in which a number of persons were to be arrested. A senior officer held a briefing session for the uniformed officers who were to carry out the arrests, in the course of which he told them the reasons for arresting each person. When he told Constable McGonigle that the plaintiff was to be arrested because he was involved in Koenig's murder, it was in my opinion reasonable for the constable to accept that and to suspect the plaintiff of being concerned in a terrorist murder."

 
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