The Bench and (lack of) common sense?

metman

Two stories from both sides of the Irish sea caught my eye today and have really made me think some Judges need to be stuck out in a patrol car for a month to see what really goes on and how victim's of crime are actually affected by the actions of the perpetrators. First off:


Family says shooting sentence 'a disgrace'
Wednesday, 28 May 2008 15:20

The family of a man left needing permanent hospital care after he was shot in the head has strongly criticised the imposition of a 12-year sentence imposed on the gunman today.

Jonathan Dunne shot his friend Ian Kenny in the head in his car in Stillorgan in Dublin last July.

Mr Justice Paul Carney said today he considered sending him to jail for life for the attempted murder, but because of his age, background and early plea he gave him 12 years.

The family say they did not get justice and that the sentence is not a deterrent but a disgrace.

They said it sends out the wrong message that if you shoot someone, you will not spend long in jail.

Kathleen Kenny, the victim's mother, said the judges are letting the gunmen off, the Government is letting them off and the Minister for Justice is letting them off.

RTÉ Radio's Liveline broadcast an interview with Kathleen Kenny yesterday afternoon, and today Mr Justice Carney said that presenter Joe Duffy had interfered in the case while sentencing was still a live issue.

He invited any party to the proceedings to apply to have Mr Duffy's interference referred to the Director of Public Prosecutions.

Afterwards, the Kenny family said that the judge was more interested in Joe Duffy than he was in their son getting shot. (source RTE news website)


Meanwhile on this side of the water..... more caselaw undermining police in the execution of their duty......read and be amazed.....

Wood v DPP [2008] QBD

The charges arose out of the events of the evening of the 23rd February 2006. The police received a report that a customer by the name of Fraser had been disruptive and had smashed an ashtray at a public house, The Standard Bearer in Stevenage. The police officers who attended, Police Sergeant Cannon and Constables Davies and Brown who went to the scene were given a vague description of the man known as "Fraser". A check of the Police National Computer suggested that the man might be the appellant who had a reputation for violence and was infected with Hepatitis B. None of the police officers knew the appellant. Acting on information that they had received, the three officers went to Yates Wine Bar near the public house. The facts thereafter, as found by the Crown Court in its Case Stated, were as follows:

On approaching Yates Wine Bar a man fitting the description of "Fraser" emerged from the premises. Sergeant Cannon took hold of the appellant by the arm and asked, "Are you Fraser?" The appellant denied that he was Fraser whereupon PC Davies took hold of the appellant's other arm. Some seconds later, others emerged from Yates Wine Bar and spoke to the appellant referring to him as "Fraser". We accepted the un-contradicted evidence of Sergeant Cannon about his (the Officer's) state of mind at this time when he said in cross examination;

"I was looking for Fraser, who had been reported to me as having committed an offence of criminal damage by throwing an ashtray in another public house, and I had a vague description. I had not met him but I knew him by reputation. I could imagine which way it would go if we sought to arrest him. When he (the appellant) came out of the wine bar where he was - Yates' Public House, Stevenage - I had a good idea it was him. I couldn't arrest him as I was not sure who he was. I took hold of his arm, and asked, "Are you Fraser?" in order to detain him to confirm who he was. Thereafter, a very short time after, others came out of Yates and talked to him, referring to him as "Fraser". It crystallised and gave me reasonable grounds to arrest him. As soon as I started to detain him, he became agitated…"

By the time that those others had emerged from the wine bar and had addressed the appellant as "Fraser", he, the appellant, was struggling with the Officers and trying to pull away. The appellant became increasingly violent and in the ensuing struggle the appellant assaulted both Constables Davies and Brown and was guilty of threatening behaviour.

Because of his behaviour the appellant could not and was not informed of the reasons for his arrest at that time but was told the reason as soon as was reasonably practicable thereafter. Constables Brown and Davies were assaulted whilst acting in the execution of their duty. The appellant was guilty of threatening behaviour contrary to Section 4 of the Public Order Act, 1986."

The Case Stated then went on to set out the submissions on behalf of the appellant which it said that the court rejected for the reasons given in the oral ruling by His Honour Judge Bevan on convicting the appellant. The relevant part of the ruling was in the following terms:

"The reality of the situation is – although this is not, it seems to us, crucial on this point – that he was dealing with a man that he believed, from information he had, had hepatitis B; was violent; could be seen to be drunk; and who had in fact committed an arrestable offence, as well as the officer believing that he had.

This is not a question of semantics. It is our clear view that whatever the officer says about detaining him to confirm who he was, and, "--only when others referred to him as "Fraser", having put my arm on him to detain him, it crystallised and gave me reasonable grounds to arrest him". In fact, if one asks the question whether the officer had reasonable grounds to suspect that an arrestable offence had been committed by the person standing in front of him, the answer is clearly that it had, and what the officer was doing was detaining him because he had reasonable grounds for suspicion. That suspicion crystallised in to…certainty at the point at which, first of all, it was confirmed in his mind that he was called Fraser because other people referred to him as "Fraser", and, secondly it confirmed in his mind that the person who he was detaining, who had denied being Fraser, was obviously lying and therefore behaving as if he had something to hide. In addition, he fitted the vague description of the person named Fraser that they were looking for.

We are therefore quite satisfied that what the officer was doing, as he was justified in law in doing, was seeking to arrest this man, and it is a question of semantics to say whether he was detaining him or arresting him. The fact is that he plainly had reasonable grounds to suspect the person in front of him as having committed an arrestable offence and was putting that into practice, even if he may have used unfortunate wording in cross-examination. We are satisfied that that was what he was trying to do. We are therefore satisfied that what he did, and what others following did, was lawful"


It seems to me that the inexorable logic of this passage is that where a police officer restrains a person, but does not at that time intend or purport to arrest him, then he is committing an assault, even if an arrest would have been justified. In the present case, Sergeant Cannon did not intend or purport to arrest the appellant when he restrained him and at no stage in the course of the fracas which resulted, did he assert that he was arresting the appellant. If he had done so or either of the constables had done so, before the appellant struggled in order to obtain his release, the position would be different. But the facts found do not support such a conclusion. It follows that the appeal is allowed, and the convictions must be quashed.

Full judgment.

---

I am beginning to wonder if the Judiciary are actually taking the piss now.

:rolleyes:

McCrack

I'm not going to comment on Carney J's sentencing but as regards the second appeal case I can see the logic the appeal judges used...

There is no half-way house between liberty and arrest. A person is either at liberty or not. If a police officer wishes to arrest a person he/she must do so under a lawful authority otherwise he/she is acting unlawfully.
The police in this instance did not have the intention at the time of restraint to arrest Fraser but still went on to physically hold him thus depriving him of his constitutionally protected right to freedom.

Police cocked up. Lesson learnt.

metman

Here there actually is a 'halfway house' as you call it. Police under certain circumstances have a power to 'detain', say for the purpose of a Section 1 search for offensive weapons, stolen property etc. It has always been an established practice that people were not allowed to simply walk away from police in the middle of an investigation. The opposite has now been enshrined in law.

In the cited case the Police did in fact arrest Fraser. However, he was first taken hold of to detain him in order to establish his identity. What the judgment says is that this was unlawful and that the decision to arrest was only made once identity had been established and therefore any physical contact made prior to this constituted an assault.

This would now indicate that Police do not touch anyone, regardless of situation, unless an arrest is being effected.

The issue I have with this judgment, as a Police officer, is this; it creates a situation that will now have to be redressed by parliament to fill the void in police powers; i.e wil police now have to be afforded a power to detain pending establishing a person's identity, will the carrying and presentation of identity documents be necessitated, and a refusal to do so become an offence? Public order situations, cordon enforcement, dealing with irate/distraught victims now become legal minefields thanks to this ill-considered judgment.

As an example, anyone who knows that they are wanted for an offence could just walk away from Police and until such time as Police are 100% certain as to that persons identity there's not much that could be done about him making off. Depending on the goodwill of criminals at large to co-operate won't, I suspect, be a runner, pardon the pun.

While civil liberties groups, defence counsel and the liberals among us may think this is good law, I do not. I take the view that this is an application of the law minus common sense that ultimately will allow criminals to, literally, get away with it and now places us in a position where more unnecessary legislation will have to be enacted to solve a problem that didn't exist prior to this judgment.

Trojan911

metman wrote: »

"I had a good idea it was him. I couldn't arrest him as I was not sure who he was."

At this stage there were reasonable grounds to arrest on suspicion of crim/dam. He had an opportunity to de-arrest should it emerge this was not the perp responsible. A quick IRB would have covered him for arrest & de-arrest.

metman

Ah yes, Section 1 of the Ways and Means Act?

(and its EAB now )

Trojan911

metman wrote: »

Ah yes, Section 1 of the Ways and Means Act?

(and its EAB now )

Ah yes, the "Evidence & Actions Book" Give it another couple of years & it will be given another name...

McCrack

metman wrote: »

Here there actually is a 'halfway house' as you call it. Police under certain circumstances have a power to 'detain', say for the purpose of a Section 1 search for offensive weapons, stolen property etc. It has always been an established practice that people were not allowed to simply walk away from police in the middle of an investigation. The opposite has now been enshrined in law.

In the cited case the Police did in fact arrest Fraser. However, he was first taken hold of to detain him in order to establish his identity. What the judgment says is that this was unlawful and that the decision to arrest was only made once identity had been established and therefore any physical contact made prior to this constituted an assault.

This would now indicate that Police do not touch anyone, regardless of situation, unless an arrest is being effected.

The issue I have with this judgment, as a Police officer, is this; it creates a situation that will now have to be redressed by parliament to fill the void in police powers; i.e wil police now have to be afforded a power to detain pending establishing a person's identity, will the carrying and presentation of identity documents be necessitated, and a refusal to do so become an offence? Public order situations, cordon enforcement, dealing with irate/distraught victims now become legal minefields thanks to this ill-considered judgment.

As an example, anyone who knows that they are wanted for an offence could just walk away from Police and until such time as Police are 100% certain as to that persons identity there's not much that could be done about him making off. Depending on the goodwill of criminals at large to co-operate won't, I suspect, be a runner, pardon the pun.

While civil liberties groups, defence counsel and the liberals among us may think this is good law, I do not. I take the view that this is an application of the law minus common sense that ultimately will allow criminals to, literally, get away with it and now places us in a position where more unnecessary legislation will have to be enacted to solve a problem that didn't exist prior to this judgment.

I retract the earlier statement that there is no half way house between liberty and arrest. Generally there isn't but as you have pointed out Metman there are some limited circumstances where a police officer can 'detain", S23 of the Misuse of Drugs act 77 springs to mind which every member of AGS would be very familier with. These limited exceptions do not apply to the facts of this case so its an irrelevant point really.


The arresting Sgt made a fatal flaw in not arresting Fraser at the outset. There is no power for a police officer to detain in these type of circumstances for the purposes of identification. On the facts it seems the police had quite enough grounds to arrest Fraser but didn't. That's the mistake. Like it or not they commited an assault and unlawfully detained him. They had the power to arrest at the ouset but didn't and instead unlawfully assaulted and detained Fraser. That's the crux of the matter.

Look I'm not saying the judgment sits well with common sense but I'm saying I can see the appeal judges logic in their decision.
The judges don't make the law they only interpret it so its a bit disingenuous to be shooting them as if they live in some ivory tower blissfully ignorant to the goings-on on the street. Their hands are tied as much as any police officers is.

mc-panda

The constitution, legislative acts, and common law of any nation purpoting itself to be civilised and developed should act as a sword for the innocent, and not as a shield for the guilty.

This judgement was a poor one and reflects badly on the judiciary. If things continue in this way, I can see a lot of policemen choosing not to intervene for fear of disciplinary action. And who could blame them.

civdef

On the facts it seems the police had quite enough grounds to arrest Fraser but didn't. That's the mistake. Like it or not they commited an assault and unlawfully detained him. They had the power to arrest at the ouset but didn't and instead unlawfully assaulted and detained Fraser. That's the crux of the matter.

I agree with this assessment, what the officer needed to do to make it all legal was advise Fraser he was under arrest for criminal damage as soon as he laid hands on him. The result of this judgement will be that people are arrested earlier, presumably to be quickly de-arrested if their identity is established.

Incidentally, this bit from the arresting officer perplexes me:

When he (the appellant) came out of the wine bar where he was - Yates' Public House, Stevenage - I had a good idea it was him. I couldn't arrest him as I was not sure who he was. I took hold of his arm, and asked, "Are you Fraser?" in order to detain him to confirm who he was.

I remember being told that reasonable suspicion of identity was enough to effect an arrest, which it seems the judge backs up, is this not the standard teaching?

metman

I think, as has been mentioned, the new rule of thumb will simply be to arrest on suspicion and de-arrest if need be. Not ideal, but if thats how it has to be.....

CD - yep you're right, I think what the Skipper was trying to say was that he wanted to be sure of the person's identity before he arrested, which is fair enough, but he could have nicked him on sus in the first instance.