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  Judgments - O'Hara v. Chief Constable of the R.U.C   continued  
 
 
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38.         The same approach has been taken in the context of other statutory powers where the question has been raised whether the constable who exercised the power had reasonable grounds to suspect that an offence had been committed. In Castorina v. Chief Constable of Surrey, The Times, 15 June 1988; (unreported), Court of Appeal (Civil Division) Transcript No. 499 of 1988, which was concerned with section 2(4) of the Criminal Law Act 1967, Sir Frederick Lawton said:
     "Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable. The facts may be within the arresting constable's own knowledge or have been reported to him. When there is an issue in a trial as to whether a constable had reasonable cause, his claim to have had knowledge or to have received reports on which he relied may be challenged. It is within this context that there may be an evidential issue as to what he believed to be the facts, but it will be for the court to adjudge what were the facts which made him suspect that the person he arrested was guilty of the offence which he was investigating."
 
39.         In Dryburgh v. Galt 1981 J.C. 69, 72, in a case which was concerned with the question whether police officers had reasonable cause to suspect that the appellant had alcohol in his body while he was driving, having received an anonymous telephone message to that effect, Lord Justice-Clerk Wheatley said:
     "Suffice it to say that the fact that the information on which the police officer formed his suspicion turns out to be ill-founded does not in itself necessarily establish that the police officer's suspicion was unfounded. The circumstances known to the police officer at the time he formed his suspicion constitute the criterion, not the facts as subsequently ascertained. The circumstances may be either what the police officer has himself observed or the information which he has received."

     Copland v. McPherson 1970 S.L.T. 87 shows how the question whether the constable had reasonable cause to suspect may arise in a case where the exercise of the power is the result of co-operation between several police officers. The respondent in that case was driving along a road when he was stopped by two plain clothes police officers. They noticed a smell of alcohol on his breath, so they sent for uniformed police officers and breath sampling equipment for the carrying out of a roadside breath test. The respondent refused to provide a sample of his breath when he was required to do so by the uniformed officers. He was removed to a police station where he again refused to provide a breath sample. He was charged with offences under section 2(3) of the Road Safety Act 1967. He was acquitted by the sheriff on the ground that the uniformed police officers had not seen the respondent driving or attempting to drive before they required him to submit to the breath test. On appeal by the prosecutor it was held that the uniformed police officers had reasonable cause to suspect the respondent of having alcohol in his body and that, as it was conceded that the respondent at the time was a person who came within the category of "a person driving . . . a motor vehicle," they were acting within their powers when they required the respondent to provide a sample of his breath. Lord Cameron, at p. 90, rejected the respondent's contention that reasonable cause could not exist in any case in which the uniformed police officers did not themselves see the person suspected himself driving or attempting to drive the motor car. He pointed out that to hold otherwise would involve that a uniformed constable could never act in such a case on information received, however compelling and reliable in quality and source. He went on to say this:

     "The issue then becomes purely one of fact: the findings in the case, in my opinion, clearly support the conclusion that the uniformed police officers who were called to the scene at the request of their plain clothes colleagues had such reasonable cause. No doubt the 'reasonable cause' must have arisen in the mind of the officer before he makes the statutory request of a person in the necessary category but when, as here, uniformed officers are called on by plain clothes colleagues to attend on a driver whose conduct has led to such a call and for so obvious reason as is found in this case, I think that in such circumstances the uniformed officers have in fact very reasonable cause for suspicion that the driver has alcohol in his body."
 
40.         Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.
 
41.         I should add that I see no conflict in principle between the approach which has been taken in these cases and the judgment of the European Court of Human Rights in Fox v. United Kingdom (1990) 13 E.H.R.R. 157 to which we were referred by Mr. Kennedy. The applicants had been detained without warrant under section 11 of the Northern Ireland (Emergency Provisions) Act 1978. As has already been noted, this section provided for the arrest without warrant of any person whom a constable suspected of being a terrorist. It was held that as the constable's suspicion had not been shown to be "reasonable", the United Kingdom were in breach of article 5(1) of the Convention, which provides:
     "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law: . . .

     c. The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence . . . "
 
42.         In that case, as was stated, at p. 169, para. 35 of the judgment, the arrest and detention of the applicants was based on a suspicion which was bona fide or genuine. But the court held that the Government had not provided sufficient material to support the conclusion that the suspicion was "reasonable", and that its explanations did not meet the minimum standard set by article 5(1)c. for judging the reasonableness of a suspicion for the arrest of an individual. As to what these requirements are, they are to be found in the following passage in the judgment, at p. 167, para. 32:
     "The 'reasonableness' of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in article 5(1)c. The court agrees with the Commission and the Government that having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as 'reasonable' will however depend upon all the circumstances."
 
43.         What Parliament has enacted in section 12(1)(b) of the Act of 1984, as in the other statutes to which I have referred, is that the reasonable suspicion has to be in the mind of the arresting officer. So it is the facts known by or the information given to the officer who effects the arrest or detention to which the mind of the independent observer must be applied. It is this objective test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and detention. The arrest and detention will be unlawful unless this criterion is satisfied.
 
44.         My Lords, in this case the evidence about the matters which were disclosed at the briefing session to the arresting officer was indeed scanty. But, as Mr. Coghlin pointed out, the trial judge was entitled to weigh up that evidence in the light of the surrounding circumstances and, having regard to the source of that information, to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it. I do not think that either the trial judge or the Court of Appeal misdirected themselves as to the test to be applied. I would dismiss this appeal.



 

   

 
 
 
  © Parliamentary copyright 1996
Prepared 12 December 1996