Daniel Lemberger Cooper considers a recent Privy Council decision that looked at the nature of reasonable ground to suspect a person of a criminal offence in order to justify arrest. Although it related to the law in Trinidad and Tobago, it has useful guidance for considering the lawfulness of arrests in England and Wales.
Reasonable grounds to suspect?
The tort of false imprisonment has two components: the fact of imprisonment and the absence of lawful authority to excuse it[1]. One such legal justification is the power of arrest, set out in section 24 of the Police and Criminal Evidence Act 1984, which provides that a constable may arrest any person whom he has reasonable grounds to suspect of being guilty of an offence that has been committed.
Although a recent Privy Council (‘PC’) decision (Lord Lloyd Jones, Hamblen and Leggatt), in Betaudier v The Attorney General of Trinidad and Tobago (Case ID: JCPC 2017/0097), concerned the law in Trinidad and Tobago (‘T&T’), it necessarily covered the law as applies to police officers in England and Wales in exercising their powers of arrest.
Facts
On 24 December 2005, Mr Betaudier (the appellant), a serving Lance Corporal in the Trinidad and Tobago Defence Force ("TTDF"), was driving a TTDF vehicle with Corporal Stevenson. His vehicle was stopped by officers of both the police and the TTDF on suspicion of transporting arms and ammunition. Mr Betaudier was found to be in possession of his licensed service firearm and $7,000 in cash.
Mr Betaudier was subsequently arrested on suspicion of kidnapping.
It was understood that the arresting officer had received intelligence that soldiers (generally) were suspected of kidnapping offences.
On the evening of 26 December 2005, the appellant’s file was reviewed by the Head of the AKU and, after a further interview, Mr Betaudier was told that he was free to go.
On 22 December 2009, Mr Betaudier began proceedings in the High Court of T&T seeking damages for false imprisonment arising from his arrest, detention and imprisonment from 24 December 2005 to 26 December 2005. The claim was dismissed by the High Court on 28 March 2013. The Court of Appeal dismissed Mr Betaudier’s appeal, by a majority, on 10 March 2017. Mr Betaudier then appealled to the Judicial Committee, having been granted final leave to appeal on 16 October 2017.
Judgment
The central issue the Privy Council was invited to consider was whether the judge was wrong to find that there was reasonable and probable cause to arrest the appellant.
Although the PC noted that it does not normally disturb concurrent findings of fact in the courts below[2], it considered that they had erred in their assessment of the principal facts, thus the normal principles on findings of fact on an appeal were displaced (the PC also rejected the respondent's argument that the concurrent findings of fact of the courts below was a bar to the appellant succeeding in the appeal).
In summary, the PC decided there was no reasonable and probable cause for the appellant's arrest, which consequently meant that his subsequent detention was also unlawful. In making this determination, it noted that there was no information in the arresting officer’s possession which could specifically link the appellant to the alleged kidnapping, and the money found did not give rise to a reasonable suspicion of his involvement in the kidnapping.
Comment
A starting point in the examination of the lawfulness of an arrest is the classic statement of Lord Atkin in Liversidge v Anderson [1942] AC 206 at 245 that:
``in English law every imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act.''
In England and Wales, when courts assess whether an officer has reasonable suspicion under section 24 of PACE, the first question for determination is subjective: that the arresting officer honestly suspected that an individual was involved in the commission of a criminal offence. There must be also be an objective foundation for the arresting officer’s honest belief based on fact, information, intelligence etc. Whether the suspicion is reasonable is based on what a reasonable person who knew the law and was told of the facts of the case would believe at the material time (see Bull v Chief Constable of Sussex 1995 159 LGR 893).
Although reasonable grounds to suspect is deemed to be a low threshold, this concise, 12 page PC decision confirms the courts must nevertheless subject any purported suspicion to serious examination.
The decision also notes that the suspicion must be specific: both in terms of the briefing or intelligence that is relied upon, and in terms of the particular offence for which the person has been arrested.
In this case, the information obtained as a result of the briefings was relevant in showing that such offences had been committed and that they had been committed by soldiers, but did not link the appellant to such offences.
It recorded that reliance on a briefing is, in appropriate circumstances, capable of being a foundation for a reasonable suspicion[3], and that in this case the arresting officer, PC Maharaj, was entitled to rely on the briefings and was not obliged to check the information supplied.
Moreover, the fact that the information may be thin or may subsequently prove to be incorrect will not of itself render the arrest unlawful[4]
The trouble in this case, however, was that, while the information conveyed via intelligence provided a basis for suspicion that offences of kidnapping were being committed by soldiers, it provided no basis for suspicion that the appellant had committed an offence of kidnapping. For example, the fact that the appellant was a soldier, one member of a very large group in T&T, gave no reason to suspect him of kidnapping committed by soldiers.
This serves to distinguish the present case from some of the key areas in this area, namely O’Hara (above), Chatwani at paras 61-63 and Hough v Chief Constable of the Staffordshire Constabulary [2001] EWCA Civ 39 at paras 2-3, where the briefing, (or in the case of Hough, the information provided by an entry on the police national computer) had named the person then arrested as the suspect.
The PC also stated that it is necessary to consider matters both individually and cumulatively. Considered cumulatively, matters may provide reasonable grounds for suspicion that an individual has been involved in some unlawful activity. But the question is whether it is sufficient to support a reasonable suspicion that he/she had committed an offence of a kind which the arresting officer had in mind (which, in this case, was kidnapping).
[1] See in England and Wales: R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, see para 65. In Trinidad & Tobago the relevant principles of law are stated by Lord Clarke in Ramsingh v Attorney General of Trinidad & Tobago [2012] UKPC 16
[2] See Devi v Roy [1946] AC 508, 521; Central Bank of Ecuador v Conticorp SA [2015] UKPC 11 at paras 4-8; Lares v Lares [2020] UKPC 19 at paras 9-10
[3] See O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, which refers to section 12(1) Prevention of Terrorism (Temporary Provisions) Act 1984., to which des Vignes J expressly referred in his judgment in the present case; Alford v Chief Constable of Cambridgeshire Police [2009] EWCA Civ 100 per Richards LJ at para 38)
[4] (R (Tchenguiz) v Director of the Serious Fraud Office [2012] EWHC 2254 (Admin) per Sir John Thomas P at para 217; R (Chatwani) v National Crime Agency [2015] EWHC 1283 (Admin) per Hickinbottom J at para 81).