Supreme Court allows appeal on lawful arrest claim, finding reasonable suspicion existed despite procedural flaws.

THE SUPREME COURT

221/04 & 222/04

Murray C.J.

Geoghegan J.

Kearns J.

(1)

BETWEEN/

ANSELM JOSEPH WALSHE

Plaintiff/Respondent

and

ANTHONY FENNESSY

First-named Defendant/Appellant

and

THOMAS A. SLOYAN, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

Second, third, fourth and fifth-named Defendants/Appellants

(2)

BETWEEN/

KAY BEDFORD

Plaintiff/Respondent

and

ANTHONY FENNESSY

First-named Defendant/Appellant

and

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

Second, third and fourth-named Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 28th day of July 2005

1. I have had the benefit of reading the judgment of Mr. Justice Kearns and I gratefully adopt his general summary of the facts

relevant to these appeals. I will confine myself to highlighting those parts of the evidence which seem to me to be most relevant in

considering the correctness or otherwise of the rulings of fact and law made by the learned trial judge on the liability issue and to

which the various defendant/appellants now make objection on this appeal. Of course, other facts are relevant to the assessment of

damages against which there is also an appeal in each case.

2. Let me state at the outset, that in relation to the second of the appeals, that is to say, the appeal of Kay Bedford, I am in full

agreement with the views expressed by Kearns J. in his judgment and with his conclusion that that appeal should be dismissed. There

is nothing further which I can usefully add on that matter.

3. It is the Walsh appeal which has caused me much the most difficulty, not least because one of the net points of law involved has

never been decided as far as I am aware.

4. Before treating of the relevant law, I intend reviewing what seems to me to be the salient parts of the evidence and the relevant

findings of the learned High Court judge, Quirke J.. In the latter connection it is important to explain that counsel for the Minister and

other state authorities Mr. Gerard Hogan, S.C. successfully persuaded the trial judge that all issues of fact as well as law relating to

whether the arrest under section 30 of the Offences against the State Act, 1939 was lawful had to be determined by the judge alone

and were not permitted to be tried by the jury. This submission seems to have somewhat surprised the trial judge but he accepted it

and it appears to have been more or less acquiesced in by the other parties. There is no appeal to this court on that issue. For the

purposes of this judgment, I am assuming that the accepted procedure was correct in law.

5. It is of some importance that I make that clear, because I have no doubt that part of the exercise in which the trial judge engaged

was pure fact finding. This court is not entitled to interfere with the trial judge’s findings of fact and, therefore, if there is a finding of

fact by the judge (which necessarily led to his ruling on the legality of the arrest being correct) that is the end of the matter and the

appeal must be dismissed. I will be explaining later in the judgment why this problem looms large and makes it particularly difficult to

form a final judgment as to whether the appeal should be allowed or not.

6. I turn now to the evidence. I will start with the instructions given to Detective Inspector Fennessy who is the first above-named

defendant. These came from his superior officer, Chief Superintendent (later Commissioner) Byrne. In answer to a question from his

counsel, Mr. Sean Ryan, S.C., he said the following.

“I was told that one Kay Bedford and Anselm Joseph Walshe, the two plaintiffs in this case, were to be arrested the following

morning, following the arrest of Dennis Kelly and Margaret Flavin. I was directed that all four prisoners were to be conveyed to

the Bridewell garda station in Dublin following their arrest in Limerick, and that to order any person that was travelling with

them in the car, or cars, to have no conversation whatsoever with those prisoners.”

7. He was asked by his counsel about information which came to his notice shortly before carrying out the instruction to arrest the

respondent, Anselm Walshe. This was described as secret information and was in a document marked “C 77” an assignation apparently

given to certain forms of high grade intelligence. Mr. Walshe went on to concede that his suspicions were aroused by the contents of

the document, these suspicions having attached to two names being the two plaintiffs in this action. The suspicion was that they

were members of the I.R.A. It is perhaps at this stage helpful to explain that Inspector Fennessy’s task at the time had been to

investigate suspected penetration by the IRA into the Limerick Garda Síochána. Inspector Fennessy went on to give evidence to the

effect that the “C 77” document would have come into the hands of his superiors.

8. Inspector Fennessy then gave evidence that he was familiar with arresting people under section 30 of the Offences against the

State Act, 1939 and he was asked what words he used when arresting Anselm Walshe. He said that he had arrested Mr. Walshe

“under section 30 of the Offences against the State Act, 1939 on suspicion of membership of an unlawful organisation, to wit the

IRA.” The Inspector was then asked had he in fact that suspicion. His answer to that was “I had that suspicion based on the C 77

which was sent to Garda Headquarters.”

9. Before referring to the next piece of relevant evidence it is important to note that the reason Inspector Fennessy was separately

represented from the state defendants in the end was because he believed that he had a grievance, at being left by his superiors, to

use a slang phrase, “carrying the can”. Such a grievance even if well-founded is not a justicable issue in these proceedings. A thread

running through his entire evidence is a resentment nevertheless on this score. Although it was not a relevant issue in the sense of it

being a justiciable issue in the proceedings it might have been regarded as highly relevant to credibility. The following two questions

and answers arising out of cross-examination of Inspector Fennessy by Mr. Michael McMahon, S.C., counsel for the plaintiffs puts this

matter into perspective:

“Q. In the defence that was put in by the State when the State was acting for you, they said in that defence that you were

the person in respect of Anselm Joseph Walshe who had the necessary, reasonable suspicion to arrest him under section 30?

We won’t get into what your suspicion was. What the defence said at that time was that you were the person who had that

reasonable suspicion?

A. I felt, My Lord, that I was carrying the burden of the arrest of Anselm Walshe personally where that was not the case.

Q. We will come to that in a moment. I just want to get the factual set up correct first of all. When the defence was first put

in in 1993 on your behalf and on behalf of the State, your employers, it was to the effect that you were the person who had

the reasonable suspicion that Anselm Walshe had committed or was about to commit … (interjection)?

A. I agree with counsel. I had suspicion but I was obeying a lawful order. In other words, if it was left to me on my own bat I

would not have arrested Anselm Walshe.”

10. When asked about the plea in the State’s defence which stated:

“The first-named defendant had a reasonable suspicion that the plaintiff had committed or was about to commit a scheduled

offence. Membership of an illegal organisation under the Offences against the State Act, 1939.”

and as to whether that was right, Inspector Fennessy said: “That is correct, My Lord.”

11. Inspector Fennessy was then asked about a separate defence that was filed on his own behalf. That contained the following

plea:

“If the plaintiff was arrested by the first-named defendant, which is denied, … such arrest was executed in the course of the

first-named defendant’s duty as a serving member of the Garda Síochána and when carrying out the instructions and

directions of a superior officer and while acting on and with their authority.”

12. Mr. McMahon then suggested to the Inspector that in that plea there was no suggestion by him that he had “a reasonable

suspicion”. He replied to that that while he had the suspicion, he was acting on direct orders. Inspector Fennessy had given evidence

about two incidents that might have given rise to suspicion of Mr. Walshe. These became known as “the Sarah Duggan incident” and

the “Newtown Perry Public House incident”. I will expand on those incidents later on in the judgment though at this stage it is

sufficient to say that he was asked whether those incidents would have been enough to justify his arresting Mr. Walshe. He gave the

following answer:

“To arrest a policeman, very few policemen have arrested policemen. I don’t take kind to arresting any policeman. I was

tasked with the job to arrest a policeman, Dennis Kelly, an IRA mole in the Garda Síochána. Anselm Walshe was not my task in

Limerick but because of the suspicions … and they were suspicions … that very sensitive and secret material and moles in the

Garda Síochána were in Limerick my authorities did see a very very serious situation and they took the decision.”

13. It was then put to him that he did not take the decision. Inspector Fennessy did not give a direct answer to that question but

said that he had been very fair to everybody. He was then pressed as to whether based on the information he had – “the three

pieces of information” (the third being the “C 77” document) he would not have had a reasonable suspicion sufficient to arrest Mr.

Walshe. His expansive answer to that question was as follows:

Nobody would arrest a policeman unless you were ordered or you discussed it with your authorities. I don’t go out and put my

hand on a policeman tomorrow morning. If I catch him committing a crime, certainly I arrest him. If I catch him doing a

robbery I will arrest him. But in relation to the Offences against the State Act, I agree with Anselm Walshe. It is the most

devastating thing to be arrested for. He is a policeman. His father was a policeman. I come from a third generation of police. I

can fully understand that that man wanted questions asked. I want questions asked. I am twelve years waiting for this court

case to be taken. It is only for I file my own defence in this case. I am the first-named defendant and this case was not done

by the State to this court (by which he apparently meant it was not brought by the State to this court).”

14. This was a reference to a long delay in bringing the case to a hearing. The Inspector then expanded further. He said:

“They knew I had suspicion but they are leaving out the authority. They are leaving out that I was ordered to do so. My main

(grievance) with the State was that I have asked for the last twelve years what is the position with this case? What have you

done to me?”

15. At that point there was a significant bit of dialogue between Mr. McMahon and the trial judge. The trial judge pointed out that the

Inspector had indicated that he had a suspicion. Mr. McMahon suggested to the judge that the significance of the Inspector’s

evidence was that whereas he had a suspicion it was not one which would “have led him to arrest”. I want to flag that answer at

this stage in the judgment in that it raises what I think was the real question of law in this case and that a great deal of time was

taken up in legal argument that did not really relate to that question. As I understand it, nobody suggested that Inspector Fennessy

did not have a reasonable suspicion that Mr. Walshe was a member of the IRA. Equally, nobody suggested that that suspicion was not

bona fide held. Again, there is no controversy that Inspector Fennessy purported to make the arrest of Mr. Walshe under section 30

of the Offences against the State Act, 1939. On one view of the law therefore all the ingredients were present for a valid arrest. But

the question arises must there be a causality ingredient also? What I mean by that is, is it sufficient for the arresting garda to have

the required suspicion even if he would not have made the judgment call that an arrest was appropriate. As I see it this appeal ought

only to be dismissed if that is the law and surprisingly, little attention was paid to that precise question in the extensive legal

arguments. I have strong views which differ from those of Kearns J. as to whether in considering the reasonableness or otherwise of a

suspicion, the orders from above without more are relevant either substantially or as a makeweight and I will express them later in this

judgment. But anything I do say will, in my view, be obiter dicta because I do not think that issue is relevant at all in this case. If

Inspector Fennessy had not only carried out the instructions but accepted that his own suspicions justified the arrest, it is

inconceivable that in, say, a subsequent criminal trial, if such had taken place of Mr. Walshe, the validity of the arrest could have

been challenged. This is another way of reiterating that nobody was really suggesting that Inspector Fennessy’s suspicions might not

objectively have been sufficient. All that was being brought out in evidence by Mr. McMahon was that the Detective Inspector himself

would not have judged them sufficient.

16. Ideally, I should not be deviating into points of law while reviewing the evidence but it seemed appropriate to make those

comments arising out of the last bit of evidence to which I referred at the stage that I am referring to it.

17. Returning to the evidence itself, Inspector Fennessy went on to agree yet again with Mr. McMahon that if it had been left to him

he would not, at that point of time, or at that stage arrested either Mr. Walshe or Ms. Bedford and he made the point that he did not

investigate either of the two. Indeed the evidence was that Inspector Fennessy had primarily been investigating a different member

of the gardaí, Denis Kelly. He explained in evidence that in that connection he had received various threats from the Provisional IRA.

After repeating yet again that he was acting only on orders from his superior officer, Inspector Fennessy said that he would not have

carried out the arrest if it was left to his own devices. He said that he would not have done so until he had enquired further into the

nature of the suspicion based on the “C 77” document.

18. There then ensued some legal argument as to whether the “C 77” document should be produced either in whole or edited or at all.

Mr. Hogan argued that this matter was res judicata having already been ruled on by Costello J. in a discovery application in the

proceedings some years earlier. Costello J. had ruled in favour of a plea of privilege in the sense of a plea that the contents of the

document should remain confidential. Mr. McMahon argued otherwise but the learned trial judge held with Mr. Hogan. There does not

appear to be any appeal against that ruling and its correctness, which may be doubtful, is not therefore before this court.

19. The “Sarah Duggan incident” related to the fact that she was believed to be a member of the IRA, was a cousin of Mr. Walshe

and that his ex directory telephone number was found in her flat. This happened against the background of some information that the

two plaintiffs in these proceedings, the second being suspected of being a member of the I.R.A., were allegedly passing information to

an I.R.A. member by the name of Michael Edwards. The “Newtown Perry Public House incident” related to the fact that Mr. Walshe

was allegedly frequenting this public house and that the owner of it was a man believed to be a member of the I.R.A. It afterwards

emerged that Mr. Walshe was fully open about his relationship to Sarah Duggan and that he was entirely innocent of any connection

with the I.R.A. I do not disagree with the observation of Kearns J. to the effect that substantially the grounds for suspicion on the

part of Mr. Walshe were the contents of the “C 77” document.

20. I do not think it necessary for my purpose to refer specifically to any more of the evidence and I turn briefly to the legal

submissions made to the trial judge. Mr. Hogan conceded from the start and, in my opinion, conceded at the hearing of this appeal

also that the suspicion had to be that of the arresting garda. He took as his authority for that proposition a passage from the

judgment of Walsh J. in The People (DPP) v. Quilligan [1986] I.R. 495. At p. 507 Walsh J. said the following:

“It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required

suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not

then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal. Furthermore the suspicion must be

one which is bona fide held and not unreasonable – see views of this Court in The State (Lynch) v. Cooney [1982] I.R. 337

when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s.

30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v. The Governor

of Mountjoy Prison [1985] I.R. 550.”

21. It is quite clear from that passage that the receipt of instructions to arrest could never be sufficient. Interestingly, that view of

the law is in line also with the modern English cases to which we have been referred dealing with somewhat analogous statutory

provisions. I would especially refer to the speech of Lord Hope of Craighead in O’Hara v. Chief Constable of the Royal Ulster

Constabulary [1997] A.C. 286. In the same case Lord Steyn also delivered an opinion. He explained that leave to appeal had been

granted by the appeals committee because it was thought that the appeal raised an issue of general public importance. He went on

to observe that counsel on behalf of the Chief Constable had raised what he called an issue of principle. Counsel had submitted that

the order to arrest given by the superior officer to the arresting officer was by itself sufficient to afford a constable a reasonable

suspicion within the meaning of the relevant section. In making this submission, counsel for the Chief Constable had largely relied on

the decison of the House of Lords in McKee v. Chief Constable for Northern Ireland [1984] 1 W.L.R. 1358. That case was dealing with

a different statutory provision and in the course of the single judgment Lord Roskill said the following:

“On the true construction of s. 11(1) of the statute, what matters is the state of mind of the arresting officer and of no one

else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer.

The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what

information they are founded.”

22. Lord Steyn, however, went on to point out that the statutory provision under consideration in the McKee case did not require

that an arresting officer must have reasonable grounds for suspicion. In that respect it is quite unlike section 30 of the 1939 Act in

this jurisdiction. In fact the legislation in question was for the purpose of internment. Lord Steyn was highly critical of the fact that

the case was used at all. Lord Steyn said the following:

“I would hold that it is a misuse of precedent to transpose Lord Roskill’s observations made in the context of the subjective

requirement of a genuine belief to the objective requirement of the existence of reasonable grounds.”

23. He considered that McKee was irrelevant to the point of principle then under consideration.

24. What may possibly be in conflict with The People v. Quilligan is the judgment of the Court of Criminal Appeal delivered by Henchy

J. in The People (D.P.P.) v. McCaffrey [1986] ILRM 687. If there is a conflict between what was decided in that case and what was

decided in The People (D.P.P.) v. Quilligan cited above, I would point out that not only is the decision in Quilligan that of a higher

court but it was also delivered much later. The judgment in McCaffrey was delivered on the 30th July, 1984. The judgment in Quilligan

was delivered on the 25th July, 1986. It is of some significance also that Henchy J. was a member of the court in the Quilligan case.

As far as I can check from the written submissions Mr. Hogan although partly relying on McCaffrey’s case, does so really on another

basis. I would have to agree with Kearns J., however, that it is certainly open to the interpretation that an instruction from a superior

to arrest under section 30 might be sufficient for it to be said that the arresting garda had the necessary suspicion. However, that

does not seem to be the law and, in my opinion, it must be wrong in principle. The requirement of the suspicion by the arresting garda

is a protection given to the citizen by the express terms of section 30 of the Offences against the State Act, 1939. What the

Oireachtas at that time would have had in mind was that the garda who made the arrest was a garda who in some way or other was

involved in the relevant investigation or at the very least had been given sufficient hearsay information for him to form the opinion. In

my view, the instruction to arrest from a superior officer is not sufficient in itself. But there is nothing to prevent a superior officer

who gives the instruction accompanying it with a few elementary facts whether of a hearsay nature or otherwise sufficient for the

arresting garda himself to have the suspicion.

25. Although I have treated of this issue, it does not seem to me to really arise. As far as I can recall, Mr. Hogan at no stage has

relied on the instructions except that at the hearing of the appeal under judicial prompting he did rather diffidently say that it might

have been an added factor. I believe at any rate that this entire issue is irrelevant because, as I indicated earlier in this judgment,

nobody could have challenged the arrest on the grounds of objective unreasonableness if Inspector Fennessy had accepted that he

was arresting under his own suspicion under section 30. The real problem that arises in this case is that the Inspector says that

although he had a suspicion and that it was a reasonable one he would not have regarded it as sufficient to warrant an arrest.

26. I think that I can summarise Mr. Hogan’s submissions by saying that he argued in the first place that the suspicion must be by the

arresting garda, that that suspicion must not be unreasonable and that if those two requirements are fulfilled the arrest is then lawful.

27. I turn now to the ruling on this matter by the learned trial judge. The ruling is quite substantial but the kernel of it is to be found

in the following two paragraphs.

“To exercise the power (lawfully), therefore, an arresting officer must first have the suspicion, which is bona fide, and not

unreasonable, that the person whom he is about to arrest has committed or is about to commit the offence for which he is to

be arrested. In this case, the offence concerned is membership of the IRA.

It follows I think logically that this suspicion, bona fide and not unreasonable, must be the motivating factor for the arrest. An

arrest effected for reasons unconnected with this suspicion would not be a lawful arrest under the section.”

28. The judge says much the same in different wording later on in his ruling when he observed as follows:

“So that what must be discovered and considered in order to determine whether or not the arrests on that day were lawful is

whether on that date Detective Inspector Fennessy … had a suspicion which was bona fide and not unreasonable that Anselm

Walshe … (was a member) of the IRA and that the suspicion was what impelled and gave rise to the arrests which followed.”

29. Earlier in this judgment, I posed the question as to what might have happened if in fact Mr. Walshe had been put on trial. Could

he have successfully challenged the arrest if some of the evidence depended on the validity of the arrest? I have come to the

conclusion that he could not. Otherwise, not only would the existence of a reasonable suspicion by the arresting garda be an

essential requirement but what would also be essential would be agreement by him that a correct judgment call had been made by his

superiors in requiring him to arrest. I have come to the conclusion that that is stretching the requirements of section 30 beyond what

could conceivably have been intended. If the requirement of what I have referred to as the “judgment call” had to exist (which I

believe it did not have to) then there was a clear credibility issue. Given that Inspector Fennessy was effectively in dispute with his

superiors over being made, as he saw it, carry the responsibility for the arrest, it would necessarily always have been doubtful as to

whether he was telling the truth when he said that notwithstanding the information he had and notwithstanding the suspicion which

he undoubtedly had he would not have effected the arrest but for the orders. However, the trial judge, as he was entitled to do,

decided that credibility issue in favour of Inspector Fennessy. If, therefore, the trial judge was correct in his legal approach, the

appeal would clearly have to be dismissed because this court could not interfere with that finding of fact on credibility. However, for

the reasons which I have indicated, I think that the trial judge did not apply the correct legal principles. Here again there would seem

to me to be a little confusion in his findings. Although early on in his ruling he seemed to attach importance to the causality aspect,

that is to say, that the suspicion on the part of the arresting garda had to be “the motivating factor for the arrest”, later on in the

ruling, he appears at times to be questioning whether the required reasonable suspicion existed. If that was his view, I am satisfied

that it was not justified by the evidence, in particular having regard to the evidence of Inspector Fennessy himself in relation to the

“C 77” document. Any court would have sympathy with Mr. Walshe in what happened to him and if he was able to establish a cause

of action he was certainly entitled to very substantial damages. But I have come to the conclusion that the arrest was lawful and I

would, therefore, allow the appeal in his case and set aside the judgment given in his favour in the High Court.