Arresting officer must have formed genuine suspicion in his own mind

Gerard O'Hara (plaintiff) v Chief Constable of the Royal Ulster Constabulary (defendant).

Arrest - Without warrant - Validity of arrest - Power to arrest a suspect - Test of reasonable suspicion - Constable briefed by superior officer to effect arrest on a suspicion of murder - Whether information received sufficient to constitute reasonable suspicion.

The House of Lords (before Lord Goff of Chieveley, Lord Mustill, Lord Steyn, Lord Hoffmann and Lord Hope of Craighead); speeches 12 December 1996.

THE test to be applied to determine whether reasonable grounds for the suspicion that the person against whom the power of arrest without warrant was to be exercised had committed or was committing an offence was laid down by section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984, and was a simple practical one. It related entirely to what was in the arresting officer's mind when he exercised the power. In part it was 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 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 arresting officer's mind.

Instructions by a superior officer to arrest, without more, were insufficient to afford a ground for reasonable suspicion. The arresting officer should be given some basis for such instructions, for instance, a report from an informer.

The House of Lords so held in dismissing an appeal by the plaintiff, Gerard O'Hara, from a decision dated 6 May 1994, of the Court of Appeal in Northern Ireland (Lord Justice Kelly, Mr Justice Pringle and Mr Justice Higgins).

The plaintiff's action against the Chief Constable of the Royal Ulster Constabulary claiming, inter alia, damages for unlawful arrest and false imprisonment, had been dismissed by Mr Justice McCollum holding that the information given to Detective Constable Stewart, gave rise to reasonable grounds in his mind for suspecting that the plaintiff had been concerned in the commission, preparation or instigation of acts of terrorism. The plaintiff had then appealed to the Court of Appeal.

The Prevention of Terrorism (Temporary Provisions) Act 1984 provided by section 12(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 21 March 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.

Hugh P Kennedy QC and Barry MacDonald BL for the plaintiff Patrick Coghlin QC and Piers Grant BL for the defendant.

LORD STEYN agreed with Lord Hope and added that certain general propositions about the powers of constables under a section such as section 12(1) could 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 was considering a preliminary stage of the investigation and information from an informer or a tip off from a member of the public might be enough: Hussien v Chong Fook Kam [1970] AC 942, at 949. (2) Hearsay information might therefore afford a constable reasonable grounds to arrest. Such information might come from other officers: Hussien's case. (3) The information which caused the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he made the arrest. (4) The executive "discretion" to arrest or not, as Lord Diplock described in Mohammed Holgate v Duke [1984] AC 437, at 446, vested in the constable who was engaged on the decision to arrest or not and not in his superior officer.

Lord Steyn said that given the independent responsibility and accountability of a constable under a provision such as section 12(1), it followed that the mere fact that an arresting officer had been instructed by a superior officer to effect the arrest was not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). In practice a constable must be given some basis for request to arrest a person under such a provision, for instance a report from an informer.

LORD HOPE OF CRAIGHEAD said that at about 6.15 a.m. on 28 December 1985 police officers entered the plaintiff's house in Londonderry and conducted a search of the premises. At the conclusion of the search, at about 8.05 a.m., they arrested the plaintiff under section 12(1)(b) of the 1984 Act. They took him to Castlereagh Police Office, where the police questioned him in a series of interviews. On 29 December 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. On 13 January 1986 the plaintiff was released without being charged either then or subsequently with any offence. Later that year he brought an action for damages against the Chief Constable.

Lord Hope said that at the trial, the arresting officer, DC Stewart said in his evidence that at 5.30 a.m. on 28 December 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 Kurt Koenig about two months previously. 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 and it was attended by a number of other police officers. The purpose of the search was to look for weapons or other evidence.

Lord Hope said that the position of the arresting officer was not simply that he had been told, to arrest the plaintiff. Nor was it that he had simply been told that the plaintiff 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 plaintiff 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. Mr Justice McCollum had accepted the arresting officer's evidence on both points. The question was whether the judge was 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 in the witness box.

Lord Hope said that it was plain that section 12(1) of the 1984 Act made provision for the circumstances in which a person might be deprived of his liberty. But that was not a unique provision. Powers of arrest or detention which might be exercised where a constable had reasonable grounds of suspecting that a person was committing or had committed an of fence were far from unique. For example, section 24(6) of the Police and Criminal Evidence Act 1984 provided that where a constable had reasonable grounds for suspecting that an arrestable office had been committed, he might arrest without a warrant anyone whom he had reasonable grounds for suspecting to be guilty of the offence. See also section 14(1) of the Criminal Procedure (Scotland) Act 1995. Provisions to the same effect had been part of the law for more than half a century: see, for example, section 10(2) of the Children and Young Persons Act 1933, section 7(3) of the Public Order Act 1936. See also section 23(2)(a) of the Misuse of Drugs Act 1971 and section 6(1) of the Road Traffic Act 1988.

Lord Hope said that the test which section 12(1) laid down was a simple one. It related entirely to what was in the mind of the arresting officer when the power was, exercised. In part that was 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.

Lord Hope said that that meant 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. That approach to the wording of section 12(1) of the 1984 Act was consistent with authority: see, for instance, Dallison v Caffery [1965] 1 QB 348, at 371, per Lord Justice Diplock and McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358, at 1361-1362, per Lord Roskill.

Lord Hope said that 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 had misdirected themselves as to the test to be applied.

LORD GOFF, LORD MUSTILL and LORD HOFFMAN agreed with Lord Hope.

Solicitors: B. M. Birnberg & Co, for Denis E. Mullan (Londonderry), for the plaintiff; Treasury Solicitor, for the Crown Solicitor (Belfast), for the defendant.