Where a court finds a wrongful arrest, it is often due to inadequate grounds for belief in its necessity. However, a brief judgment in Smith v Police Service for Northern Ireland [2019] NIQB 39 is a demonstration of where there is a lack of reasonable suspicion that the person arrested has, themselves, committed the offence. Also of interest is the sum for damages – £3,550 for the unlawful arrest and ten hours’ consequent unlawful detention.
The judgment was an appeal from a county-court decision, so it contains only a summary of the facts rather than the detailed findings.
The police were called, one morning, to an incident where a neighbour had reported an “injured female conscious and breathing… [she] has been assaulted [and] has facial and head injuries”. A subsequent report was that the woman had jumped from a first-floor window of her home, to which officers were having to make a forced entry because it was closed. There was a pool of blood below the window. A police officer attended upon the woman (by this time at another premises), noting that she was covered in blood, disorientated and that she “mumbled something about two people attacking her”.
The police searched the woman’s home and found a mobile phone on which there was a text-message, from a person called Clare, stating, “have you managed to get rid of Conor?”.
The police learned from a neighbour that there had been a party in the woman’s house the night before and were directed to a particular address, that of a “known associate” of the woman – Barry Corry. At the address was Mr Corry and three others, including the Claimant. All were highly intoxicated. Mr Corry told the police that he had not seen the woman in three months. Further investigations that morning led back to Mr Corry’s house. The police again spoke to him whereupon he changed his account, stating that he had been at the woman’s house the previous evening and had a key.
The police arrested all the four persons on suspicion of attempted murder. They were held for ten hours before being released, after it had become apparent that the woman had jumped from a window on hearing a fire-alarm.
The statutory power of arrest in Northern Ireland is stated at Police and Criminal Evidence (NI) Order 1989 s26(2). The requirements are the same as those in English and Welsh law – namely reasonable grounds for suspecting a person to be guilty of an offence and reasonable grounds for believing that arrest is necessary.
The High Court held that the police had a reasonable suspicion that a serious offence had been committed. This was because: [19]
- The woman’s address was already known to the police, as was the association between her and Mr Corry;
- The initial call and reporting by the neighbours were suggestive of a serious assault;
- The woman indicated that she might have been assaulted or attacked;
- The woman presented with severe injuries with no explanation as to how they had happened;
- The investigation of the scene was consistent with an attack, as was the pooling of blood below the window;
- Access to the property had been secured, which suggested a third party had access;
- Mr Corry had lied in his initial explanation.
However, the High Court went on to find that the police did not have grounds for reasonably suspecting that the Claimant himself had committed the offence. It referred to the Northern Ireland case of Salmon v Northern Ireland Chief Constable [2013] NIQB 10, which stated:
“A reasonable suspicion requires the existence of some facts of information which would satisfy an objective observer that the person concerned may have committed the offence.”
The court considered that the only factors connecting the Claimant to the offence were that he was present in the house with Mr Corry and that his forename was Connor, which was the same as that on the woman’s phone. It held that: [19]-[22]
- “Conor” was a common name;
- The police did not check the provenance or history of the text message, although they had the mobile number of its sender and had the means of contacting her despite the apparent urgency of the situation;
- The text message was the only factor on which it relied to base the Claimant’s arrest and detention;
- The police rejected the Claimant’s explanation that he had not been present in the woman’s home relying solely on the text message and likely being tainted by Mr Corry’s change of story.
In those circumstances, the court held that the test in Salmon was not met – that there were not facts to satisfy an objective observer that the Claimant may have committed the offence that the police were investigating. The county-court awarded £3,550 for the unlawful arrest and ten hours detention, which the High Court confirmed without further explanation.
Commentary
It is relatively rare for an unlawful arrest case to be decided on the basis of lack of reasonable grounds for suspicion rather than belief in necessity – see the recent English case of Commissioner of the Metropolitan Police v MR [2019] EWHC 888 (QB), discussed here.
These cases are undoubtedly fact sensitive – but it worth noting that even the fairly low hurdle requiring reasonable grounds for suspicion is still a hurdle to be surmounted and that the reasonable suspicion must be linked to the person or persons arrested.
There are just a couple of points in the judgment to approach with caution. Read one way, the judgment might be thought to suggest that the police failure to investigate the provenance and meaning of the text message contributed to their not having a reasonable suspicion. That is, however, unlikely. The law is fairly clear that it is not for the court to consider what further investigations could have been undertaken rather than whether, in the absence of such investigations, there were reasonable grounds for suspicion on the material available – see Castorina v Chief Constable of Surrey (Unreported 10 June 1988):
“There is ample authority for the proposition that courses of inquiry which may or may not be taken by an investigating police officer before arrest are not relevant to the consideration whether, on the information available to him at the time of the arrest, he had reasonable cause for suspicion.”
The judgment, properly read, is that the police did not have such reasonable grounds for suspicion on the material before them. It may have been that further investigation into the text message might have provided such grounds but, conversely, it might not had it become apparent that it was referring to someone else.
The second is that although the judgment referred to the question of necessity, it did not go on to decide the point – probably because it could not have been necessary to arrest the Claimant where there could be no reasonable grounds for suspecting that he had committed an offence.
It was noted that the police asserted necessity on the nature of the relationship between the woman and the Claimant, to protect evidence and to protect the woman against further injury. The Claimant contended that there were no grounds to believe arrest was necessary where no other preliminary investigative steps had been taken. The court itself referred to the issue of protection of the Claimant falling away, given that the police had taken her to hospital.
If there had been sufficient factual material giving rise to a reasonable suspicion that the Claimant had committed an offence, this may have been sufficient for the police to have reasonable grounds for believing that arrest was necessary to allow the prompt and effective investigation of the offence. But the court may have been unimpressed by the addition of the ground of preventing the Claimant’s causing injury to the woman where that was not likely on the facts. This again highlights the importance of careful thought for and recording of the reasons for arrest – otherwise a court may hold such considerations to be inadequate.