Each claimant said that they had been wrongfully arrested, the arresting police officers having either failed to ask whether the arrest was necessary (Farrelly), or mistakenly concluding so.
Held: The Order now contained in regulation 26(5) an exhaustive list of the possible reasons for an arrest, and the Code of Practice required the officer to consider whether an alternative, less intrusive alternative was available.
Belief involves a judgement that a state of affairs actually exists; suspicion that a state of affairs might well exist. As to whether the requirement for having reasonable grounds for suspicion restricted the court to the officer’s knowledge at the time, a court should concentrate on the specific grounds to which the constable had regard. However a wilful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest cannot be ignored, and ‘where a police officer is called upon to make a decision as to the necessity for an arrest, the grounds on which that decision is based can only be considered reasonable if all obviously relevant circumstances are taken into account. In particular, it is necessary that he make some evaluation of the feasibility of achieving the object of the arrest by some alternative means, such as inviting the suspect to attend for interview.’
As to the ‘necessity’ of an arrest: ‘the requirement that the constable should believe that an arrest is necessary does not signify that he requires to be satisfied that there is no viable alternative to arrest. Rather, it means that he should consider that this is the practical and sensible option.’
Judicial review was not the appropriate means to investigate such allegations: ‘a challenge by way of judicial review is an unacceptable type of satellite litigation which not only distracts from the proper conduct of the criminal proceedings but seeks to remove a discrete issue from the criminal court which is its natural home. The second reason is that in almost all cases, the issues which arise are far more comfortably and satisfactorily accommodated in a form of proceeding which involves the giving of oral testimony and the testing of claims and counterclaims under cross examination.’
In Farrelly’s case, the officer had a practice of unquestioningly arresting anyone attending voluntarily for interview. He did not consider the alternative, and review of that arrest was granted: ‘ this arrest cannot be said to have been based on reasonable grounds for believing that it was necessary. ‘ The court treated the action as an ordinary writ.
A process is either a ‘criminal cause or matter’ or it is not. It is not capable of having chameleon qualities whereby it changes status from one to the other depending on the specific facts at any particular stage of the proceedings. The underlying arrest and investigatory process is a criminal cause or matter and the court considered that all four cases were to be so regarded irrespective of what had occurred since the date of arrest.
Applying re Coleman, a divisional court with two or more judges had jurisdiction to hear such cases which are not criminal causes or matters.
Kerr LCJ, Higgins LJ, Girvan LJ
[2009] NIQB 20
Bailii
Police and Criminal Evidence (Northern Ireland) Order 1989 26(4)
Northern Ireland
Citing:
Cited – Gifford v Kelson 1943
(Canada – Manitoba) ‘suspicion is much less than belief; belief includes and absorbs suspicion’. . .
Cited – Dallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
Cited – O’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
Cited – Johnson v Whitehouse 1984
There is a relevant distinction between suspecting and believing in a police officer’s mind: ‘the dictionary definitions of those words . . of course, do show that the word ‘believe’ connotes a greater degree of certainty, or perhaps a smaller . .
Cited – Dallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
Cited – Baker v Oxford 1980
The court considered the distinction between ‘belief’ and ‘suspicion’ when powers of arrest are exercised. . .
Cited – Regina (Aru) v Chief Constable of Merseyside Police CA 30-Jan-2004
The applicant had been cautioned by the police. The victim sought judicial review of that decision. The respondent now appealed.
Held: The court of appeal had no jurisdiction to hear an appeal against a judicial review in a criminal matter . .
Cited – Ex parte Alice Woodhall CA 8-May-1888
Extradition proceedings are in their nature criminal proceedings. Lindley LJ said: ‘Can we say that the application in the present case is not an application in a criminal cause or matter? I think that in substance it certainly is. Its whole object . .
Cited – JR14, Re Judicial Review QBNI 22-Nov-2007
The court said that the test of whether proceedings were in a criminal cause or matter should be: ‘Is the application before the court ancillary or incidental to a substantive process which places the applicant at risk of a criminal charge or . .
Cited – Regina (Aru) v Chief Constable of Merseyside Police CA 30-Jan-2004
The applicant had been cautioned by the police. The victim sought judicial review of that decision. The respondent now appealed.
Held: The court of appeal had no jurisdiction to hear an appeal against a judicial review in a criminal matter . .
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Cited – Amand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
Cited – Cuoghi v Governor of Her Majesty’s Prison Brixton and Government of Switzerland CA 15-Jul-1997
The obtaining of an order to obtain evidence in support of a writ of habeas corpus application is a criminal matter. The Court of Appeal has no civil jurisdiction. Extradition proceedings, as well as proceedings ancillary or incidental to those . .
Cited – Regina v Blandford Justices CA 1990
The applicant had been charged with public order offences and had been remanded in custody by the Magistrates’ Court. He immediately commenced judicial review proceedings on the grounds that he was charged with an offence which was not punishable . .
Cited – Carr v Atkins CA 1987
The police had applied to a judge for an order under the 1984 Act requiring the applicant, a suspect in a fraud investigation, to produce documents falling within the definition of ‘special procedure documents’ under the Act. The applicants sought . .
Cited – In Re Coleman’s Application CANI 1988
The court asked what was the result of a first instance hearing of a matter where it had incorrectly concluded the matter to be a criminal cause. Was it ultra vires?
Held: Lord Lowry CJ said: ‘It is an accepted maxim that nothing is to be . .
Cited by:
Cited – Richardson v The Chief Constable of West Midlands Police QBD 29-Mar-2011
The claimant, a teacher, said he had been unlawfully arrested and detained after an allegation of assault from a pupil. Having attended the police station voluntarily, he said that the circumstances did not satisfy the required precondition that an . .
Cited – Hayes v Merseyside Police CA 29-Jul-2011
The claimant had been arrested after a complaint of harassment. The officer then contacted the complainant who then withdrew his complaint. The officer went to visit the complainant to discuss it further. On his return the claimant was released from . .
Lists of cited by and citing cases may be incomplete.
Northern Ireland, Police, Litigation Practice, Judicial Review
Updated: 01 November 2021; Ref: scu.346495