CASE OF O'HARA v. THE UNITED KINGDOM
No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Nicolas Bratza
8. The applicant was, and still is, a prominent member of Sinn Fein. He has been arrested by the police on a number of occasions and has issued proceedings relating to his allegations, inter alia, of arbitrary arrest, assault and ill-treatment arising out of six incidents. In proceedings lodged for incidents in 1988 and on 19 March 1993, he received an award of damages (amount unspecified). In or about January 1994 he was awarded damages of 2,500 pounds sterling (GBP) for an incident in Guildhall Square on 16 March 1993 when the judge found that he had been wrongfully arrested by police officers who had purported to arrest the applicant for obstruction in failing to give his name when in fact they were fully aware of his identity. This case concerns his arrest in 1985 in relation to the murder of Mr Kurt Konig. 9. Kurt Konig was a German citizen working for the caterers of canteens in police stations in Londonderry. He was murdered on 21 November 1985. The Provisional IRA claimed responsibility for his death. 10. The Government submitted that Special Branch received intelligence that the applicant and three other persons were involved in the murder. The intelligence derived from four informants who had proved reliable in the past and had provided information leading to seizures of explosives or firearms and to prosecutions. None of the informants had a criminal record. The information given by these four informants was consistent, in that all gave the same names as being involved, and independent, in that none was aware of the existence of the others and each gave the information at separate meetings with police officers. 11. Detective Superintendent R. of the Royal Ulster Constabulary (“the RUC”) was briefed by Special Branch concerning this intelligence that the applicant was a member of the Provisional IRA and had been implicated in the murder. 12. Detective Superintendent R. briefed Inspector B. who in turn briefed Detective Constable S. 13. On 28 December 1985, at about 6 or 6.15 a.m., Detective Constable S. visited the applicant’s house and conducted a search. At the conclusion of the search, at 8.05 a.m., S. arrested the applicant. He told the applicant that he was arresting him under section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 (“the 1984 Act”) which empowered a police constable to arrest, without a warrant, a person whom he had reasonable grounds for suspecting of being concerned in the commission, preparation or instigation of acts of terrorism. 14. The applicant was taken to Castlereagh Detention Centre where he was questioned about his possible membership of the IRA, his suspected involvement in Kurt Konig’s murder and also his possible involvement in the murder of two soldiers on 1 April 1982. He was interviewed on thirty-four occasions. He did not respond to any questions. According to the Government, the first interview occurred on 28 December 1985 at 11.50 a.m., at the start of which he was told that the police were enquiring into his involvement with the Provisional IRA and related matters. Police notes provided by the Government record that during the next interview, from 2.05 to 4 p.m., the interrogating officers told the applicant that they were making enquiries in relation to his membership of the IRA and the murder of Kurt Konig. 15. On 29 December 1985 the Secretary of State for Northern Ireland extended the applicant’s period of detention beyond the initial 48-hour period, by five days. The applicant was released without charge on 3 January 1986 at 9 p.m., after six days and thirteen hours in custody. 16. By a writ issued on 20 August 1986 against the Chief Constable of the RUC, the applicant instituted a civil action for damages before the High Court in Northern Ireland in respect of, inter alia, assault, seizure of documents, false imprisonment and unlawful arrest. 17. Before the High Court, the submissions of the applicant’s counsel concentrated, as the trial judge found, on the issues of assault and confiscation of documents. He did however raise the argument, in the context of the lawfulness of the arrest, that Detective Constable S. did not have sufficient grounds for suspicion that the applicant had committed an offence to justify the arrest. The evidence before the court from Detective Constable S. was to the effect that he attended a briefing at 5.30 a.m. on 28 December 1985 in which he was told that he was to carry out a search to find evidence and arrest persons, including the applicant, suspected of involvement in the murder of Kurt Konig. He had been told by his superior officer, Inspector B., at that briefing that the applicant was involved in the murder and stated that these were the reasonable grounds for suspecting the applicant. He did not state that Inspector B. had told him the grounds for his own suspicion, nor was he asked about that matter by counsel for either party. It was common ground that the murder was a terrorist offence. The superior officer was not called as a witness in the proceedings. 18. On 14 November 1990 Judge McCollum found that there had been an unlawful taking of the applicant’s notes by a police officer and awarded Mr O’Hara GBP 100 in damages. He rejected the applicant’s claims of assault and ill-treatment, finding that he had not satisfied him on the balance of probabilities that his version of events was right and that of the police officers wrong. As regards the allegations of wrongful arrest, the judge noted: “... while [the applicant’s counsel] submitted that the officer who arrested the [applicant] was required, in order to render the arrest lawful, in addition to holding the suspicion grounding the arrest of the [applicant], [to] have reasonable grounds for that suspicion, based on his own knowledge of facts giving rise to that suspicion. He accepted that both Mr Justice Carswell and the Lord Chief Justice had previously rejected the same submission in similar cases. While he reserved his position on this issue he made no new submissions and produced no new arguments to me which would cause me to depart from the reasoning in their decisions, and in the circumstances I am satisfied in this case on the evidence of Detective Constable [S.] that as a result of the information he had been given he had reasonable grounds for suspecting that the [applicant] had been concerned in the commission, preparation or instigation of acts of terrorism. Cross-examination of the detective constable did not probe the details which had been disclosed to Detective Constable [S.] in the course of the briefing during which he was supplied with this information. I find on the evidence that the detective constable had a suspicion that the [applicant] was involved in the murder of Kurt Konig and that this suspicion was reasonably based on information given to him by a superior officers at the briefing that morning. Either party could have elicited details of the briefing, not as truth of the matters disclosed, but as relevant on the issue of the reasonableness of the suspicion held by the arresting officer. Proof of the lawfulness of the arrest lies on the defendant. 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 [S.] 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 main issue between the parties is as to whether the [applicant] was assaulted and mistreated during the period of his detention ...” 19. On 24 October 1990, the applicant gave notice of appeal to the Court of Appeal in Northern Ireland concerning the claim of unlawful arrest and false imprisonment. 20. On 6 May 1994 the Court of Appeal dismissed the appeal, upholding the decision of the High Court that reasonable suspicion could be derived from information provided by a superior officer and that the arrest was lawful. “Notwithstanding his concern that more detail of the briefing had not been given, the learned trial judge was able to conclude: ‘(1) that the arresting officer ... did have a suspicion that the [applicant] was involved in a terrorist murder and it was implicit that that suspicion was genuinely held by him; and (2) that the official briefing which he had attended given by [his superior officer] gave him reasonable grounds for that suspicion.’ These were factual findings and clearly contained in our view all the essential proofs that the respondent was required to adduce to constitute lawful arrest under section 12(1)(b) of the Act. [Applicant’s counsel] submitted that this was not the case. The source of the suspicion and the reasonable grounds for it must be before the court, namely evidence from the briefing officer, Inspector [B.], as to the grounds on which he suspected the [applicant] of being involved in the commission, preparation and instigation of acts of terrorism. It would be unjust, he contended, if section 12 could give Inspector [B.] protection from liability for false imprisonment if the Inspector himself had not reasonable grounds for the suspicion. The first part of this submission flies in the face of the authorities as we have said. The second part, so far as this case is concerned, seems to be hypothetical in that the regularity or the bona fides of the ‘official briefing’ were not questioned. No factual foundation for such a case was made out ... We consider that the decision of the learned trial judge was correct. The information given at the briefing to the arresting officer was admissible and although, in his words, ‘scanty’ it was sufficient to constitute the required state of mind of an arresting officer under section 12(1)(b) of the Act.” 21. An appeal to the House of Lords against the decision of the Court of Appeal was dismissed on 12 December 1996. In his judgment, with which the other judges agreed, Lord Hope of Craighead held that it was not necessary for an arresting officer to possess all the information which had led to the decision to arrest, but that the arresting officer must have equipped himself with sufficient information so that he had reasonable cause to suspect before exercising the power of arrest. The information acted upon 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 which turns out later to be wrong. While the evidence about the matters disclosed at the briefing was indeed scanty, he found that the trial judge was entitled to weigh up the evidence in the light of the surrounding circumstances and, having regard to the source of that information, and to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it. 22. Lord Steyn stated, inter alia, concerning the general principles: “Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesis one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers ... (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive ‘discretion’ to arrest or not ... vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers. Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of superior officers and the fact that he gave an order make a difference? ... In practice it follows that a constable must be given some basis for a request to arrest someone under a provision such as section 12(1), e.g. a report from an informer.” 23. Section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 provided at the relevant time: “(1) Subject to sub-section (2) ..., 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; ... (4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him.” 24. This provision sets a test of an honest suspicion upon reasonable grounds, involving an objective element. Domestic case-law indicates that an arrest will be unlawful where, although there was an honest suspicion on the part of the arresting officer, that suspicion was not objectively reasonable (see, for example, Foulkes v. Chief Constable of the Merseyside Police [1998] 3 All England Law Reports 705). 25. Although section 12 concerns the suspicion held by the arresting officer, where a briefing officer has told an arresting officer that there is reliable information when there is not, the Chief Constable may become vicariously liable for a wrongful arrest, on behalf of the briefing officer, not the arresting officer (see Clarke v. Chief Constable of North Wales Police, 5 April 2000).