Arrest: The mind of the officer, Basis of reasonable grounds for suspicion - a re-affirmation of the principle.
(1996) The Times, December 13 HOUSE OF LORDS
O'Hara v Chief Constable of the Royal Ulster Constabulary
THE ACTION
Action the Chief Constable of the Royal Ulster Constabulary claiming, inter alia, damages for unlawful arrest and consequent false imprisonment, Mr Justice McCollum had held that as a result of the information given to DC Stewart (Arresting Officer), he had reasonable grounds for suspecting that O'Hara had been concerned in the commission, preparation or instigation of acts of terrorism.
THE LAW
Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 provides:
"(1) Subject to subsection (2) below, a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be; . . (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. . ."
The 1984 Act expired on March 21, 1989 and was replaced by the Prevention of Terrorism (Temporary Provisions) Act 1989, the provisions of section 12(1) being in section 14(1) of the 1989 Act.
THE FACTS
The facts are taken from the judgment of LORD HOPE: in 1985 police officers entered O'Hara's house and conducted a search. At the conclusion of the search, they arrested O'Hara under section 12(1)(b) of the 1984 Act. He was interviewed.
Subsequently an order was made by the secretary of state under section 12(4) of the 1984 Act extending the period of 48 hours provided by that subsection by five days. O'Hara was released without being charged either then or subsequently with any offence.
DC Stewart, attended a briefing. The purpose of the briefing was to mount an operation to search houses and to arrest people in connection with the murder of Kurt Koenig. It was common ground that the murder of Koenig, which had been committed in Londonderry in November 1985, was an act of terrorism within the meaning of section 12(1).
The briefing was conducted by Inspector Brown. The purpose of the search was to look for weapons or other evidence.
The arresting officer's position, was that he suspected O'Hara of having been concerned in such acts, and that his suspicion was based on the briefing which had been given to him. The judge accepted the arresting officer's evidence on both points.
Was the judge entitled also to hold that the arresting officer had reasonable grounds for this suspicion, as the only evidence about those grounds was what the officer himself said about them.
Section 12(1) laid down the test. What was in the mind of the arresting officer when the power was exercised? In was part a subjective test, because he must have formed a genuine suspicion in his own mind that the person had been concerned in acts of terrorism.
In part also it was an objective one, because there must also be reasonable grounds for the suspicion which he had formed. But the application of the objective test did not require the court to look beyond what was in the mind of the arresting officer.
It was the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he had formed. All that the objective test required was that those grounds be examined objectively and that they be judged at the time when the power was exercised.
That meant that the point did not depend on whether the arresting officer himself thought at that time that they were reasonable. The question was whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It was the arresting officer's own account of the information which he had that mattered, 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 was entitled to form a suspicion based on what he had been told. His reasonable suspicion might be based on information which had been given to him anonymously or it might be based on information, perhaps in the course of an emergency, which turned out later to be wrong.
It was 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 depended on the source of his information and its context, seen in the light of the whole surrounding circumstances.
What Parliament had enacted in section 12(1) of the 1984 Act was that the reasonable suspicion had to be in the mind of the arresting officer. So it was the facts known by or the information given to the officer who effected the arrest or detention to which the mind of the independent observer must be applied.
It was that objective test, applying the criterion of what might be regarded as reasonable, which provided the safeguard against arbitrary arrest and detention. The arrest and detention would be unlawful unless that criterion was satisfied. Neither the judge nor the Court of Appeal misdirected themselves as to the test to be applied.
THE DECISION
In order to determine whether reasonable grounds for the suspicion to justify arrest without warrant existed under section 12(1)(b), the test related to what was in the arresting officer's mind when he effected the arrest because he must have formed a genuine suspicion that the person being arrested had been concerned in acts of terrorism.
It had also to be shown that there had been reasonable grounds for forming such a suspicion. The basis of that suspicion was not necessarily the officer's own observations. He could have formed the suspicion from the information he received, whether true or false, and a reasonable man, having regard to all the surrounding circumstances, would also regard that suspicion as reasonable.
Instructions by a superior officer to arrest, without more, was insufficient to afford a ground for reasonable suspicion. The arresting officer should be given some basis for such instructions, for example, a report from an informer.
The Lords so held in dismissing an appeal by O'Hara, from the dismissal by the Court of Appeal of his appeal.
Comment
What may be reasonable grounds for suspicion necessary to justify an arrest without a warrant? This case raises a very fundamental issue which is part of the disciplined structure such as the Armed Forces or the Police Service. In Lord Steyn's judgment he says, "The constable said that the superior officer ordered him to arrest O'Hara. He did so". As his Lordship says; "Moreover, the point is of considerable importance since orders to arrest are no doubt routiney given by superior (sic) officers to constables".
In an article, "Difficulties with Arrests" at Police Journal No 1 January/March 1994" R R Jerrard It was said, "It is of immense importance how an officer exercises his discretion under s.24(6) of Pace since the outcome may be an unlawful arrest resulting in an action for false imprisonment in a County Court. S.24(6): '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.'
Reasonable grounds suggest an objective test, this is lower than the standard sufficient to prove a prima facie case. In the course of their duties constables act for various reasons, e.g., information received, radio messages, telephone calls, or perhaps the word of an informer; all are valid reasons. It is not surprising that the Courts have allowed reasonable scope: whilst setting limits.
Civil actions against the police have increased in recent years, however, Court of Appeal decisions have placed the matter in prospective and shown that the police do not need to take positive steps to make further enquiries once a reasonable suspicion has crystallised in their minds." The limits have now be re-examined by the House of Lords.
Some previous cases illustrate the limits.
In Chapman v Director of Public Prosecutions (1988) 89 Cr.App.R. 190, it was held that a constable who suspects a person of committing an offence to which only a limited power of arrest applies cannot later defend himself on the footing that the facts might have fallen into a more serious offence category.
The Court found that the officer believed that a fellow officer had suffered an assault. The Court concluded this was a common assault, (no known injuries), which is not an arrestable offence. The officer had purportedly exercised his powers under s.26(6) Pace Act and entered a flat to do so: in the course of which he was assaulted in the execution of his duty. The Court said they were not holding that the officer did not believe he had reasonable suspicion, they were saying the conviction could not stand because there was no finding that he did.
In Castorina v Chief Constable of Surrey (1988) 138 NLJ 180, it was held that failure to follow an obvious course of inquiry or verification in exceptional circumstances may, however, be grounds for attacking the exercise of the power. Woolf LJ; suggested three questions:
(i)Did the arresting officer suspect that the person arrested was guilty of the offence? This is subjective to the officer's mind;
(ii)Was there reasonable cause for that suspicion: this is a matter of law for the Judge;
(iii)If the answer to these questions is affirmative, then the officer has a discretion to arrest (he may) arrest, and the discretion must be exercised in accordance with the principles set down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; 112 JP 55.
Ward v Chief Constable of Avon and Somerset Constabulary (1986) The Times, 26 June, was also an action for wrongful arrest and false imprisonment. Following rioting in Bristol a detective sergeant received information that a television set had been carried into a premises. He went to the premises were he was admitted voluntarily. Whilst searching he found 13 easter eggs. He did not believe the claim that they were purchased at 37p each: the price was too low and there were no price labels on them. He arrested because he had reasonable cause to suspect an arrestable offence had been committed.
The Court of Appeal held he had reasonable cause, "looking objectively as one should, DS Edwards did have reasonable cause for making the arrest. He had found the eggs in circumstances which aroused his suspicion and which called for an explanation. He was given an explanation which was apparently untrue. He disbelieved it, and on good grounds".
Mohammed-Holgate v Duke [1984] AC 437, concerned the theft of jewellery from a premises in which the plaintiff lodged. When items turned up in a local jeweller's shop the description given to police fitted the plaintiff. She was arrested on reasonable suspicion. The plaintiff maintained her innocence and was never charged. She made a claim to to County Court and was awarded £1,000 damages.
The basis of the claim was that the power had been exercised to induce the plaintiff to confess. The detective constable knew that without a confession he would not be able to charge the plaintiff, and by depriving her of her liberty there was a likelihood that she would confess.
It was held, by the House of Lords, that in deciding whether or not to make an arrest as in this case, a constable was entitled to take into consideration as a relevant matter the fact that the suspect would be more likely to tell the truth if detained for questioning at a police station rather than questioning at the suspect's home.
Lord Devlin said in Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942, at 948; "suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'."