Supreme Court dismisses appeal on unlawful arrest; arrest based on vague suspicion without reasonable grounds.

Murray CJ.

Geoghegan J.

Kearns J.

THE SUPREME COURT

[222/2004]

[221/2004]

BETWEEN

ANSELM JOSEPH WALSHE

AND

KAY BEDFORD

PLAINTIFFS/RESPONDENTS

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

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

1. This is an appeal brought by the appellants against the ruling of the High Court (Quirke J.) made on the 20th May, 2003, which

determined that the arrest of the plaintiffs on the 27th September, 1991 and their subsequent detention was unlawful, and against

the award of damages made thereafter by a jury when the 1st named plaintiff was awarded damages in the sum of €175,000 and the

2nd named plaintiff was awarded damages in the sum of €100,000 in respect of their claims. The State appellants are also appealing

from a ruling of the learned High Court judge delivered on the 12th November, 2003, which held that the first named

defendant/respondent, Anthony Fennessy, was entitled to recover his own costs of the proceedings from the State appellants. By

consent of all the parties, however, the hearing of the appeal in respect of the last mentioned issue has been deferred pending

resolution of the main appeal in respect of Garda Walshe’s case, and the associated proceedings brought by Ms. Kay Bedford, both of

which claims were heard and determined at the same time.

2. Both Anselm Walshe and Kay Bedford were arrested in Limerick on the evening of 27th September, 1991, under s.30 of the

Offences against the State Act, 1939. Anselm Walshe was at the time a plain clothes garda officer stationed in Limerick who had 33

years service in the Garda Síochána. Kay Bedford was a person who was on friendly terms with Garda Walshe, but was not herself a

member of the Garda Síochána. Following the arrest, which in the case of Garda Walshe took place at Henry Street Garda Station,

and in the case of Ms. Bedford at her home, both were brought to Dublin where they were detained in custody at the Bridewell Garda

Station and questioned until they were released on the morning of the 29th September, 1991, after approximately 40 hours detention.

3. The arrests took place as part of an investigation into a matter of major concern to the garda authorities at the time, namely, the

infiltration of the ranks of the gardaí in Limerick by the I.R.A. This had resulted in the leaking of information on garda activities in

Limerick from within garda ranks to the I.R.A. Both Garda Walshe and Ms. Bedford were arrested on suspicion of membership of the

I.R.A. After questioning in the Bridewell Garda Station in Dublin however both were released without charge. Both the State appellants

and Detective Inspector Fennessy, who was the officer appointed by the Garda Commissioner to conduct the inquiry into the possible

existence of moles or I.R.A. members or sympathisers within the Garda Síochána in Limerick, now accept that neither Garda Walshe or

Ms. Bedford were members of the I.R.A. However, it is contended on behalf of the State appellants that the arrests and subsequent

detention of both Garda Walshe and Ms. Bedford were not unlawful as the arresting officer in each case had a bona fide and

reasonable suspicion at the time of arrest that each was a member of an illegal organisation, namely the I.R.A.

4. The legality of the arrests of Garda Walshe and Ms. Bedford was the subject of a ruling in the course of the trial by the trial judge

on 20th May, 2003. He ruled that the arrests were unlawful on the grounds that the members of An Garda Síochána who arrested

Garda Walshe and Ms. Bedford, being Detective Inspector Fennessy and Sergeant O’Shea respectively, did not have the requisite

suspicion for the purposes of s.30 of the 1939 Act. Having regard to the fact that the trial judge so ruled, the only issue to be then

considered by the jury in both cases was the quantum of damages and the trial judge directed the jury on that basis. There is no

complaint of any sort made about the charge given to the jury by the learned trial judge. During the course of the proceedings and

prior to trial, Detective Inspector Fennessy sought his own legal representation separate from the State appellants and engaged his

own solicitors and counsel for the trial. While the State appellants have at all times accepted that Detective Inspector Fennessy was

entitled to an indemnity for the award of damages and costs made in favour of the plaintiffs, the State appellants did not accept that

they had any liability to discharge Detective Inspector Fennessy’s own costs. This issue was the subject of a separate hearing before

the trial judge on 12th November, 2003, at which neither plaintiff was involved or represented. Following submissions, the trial judge

ordered that the State appellants pay Detective Inspector Fennessy’s costs in both cases. In notices of appeal date 21st May, 2004,

the State appellants have appealed the ruling of the trial judge which found the arrests of Garda Walshe and Ms. Bedford to be

unlawful, the awards of general damages of and €175,000 and €100,000 in favour of Garda Walshe and Ms. Bedford respectively and

the order of the trial judge granting Detective Inspector Fennessy his costs against the State appellants. It is submitted that the trial

judge erred in ruling as he did in relation to the arrests and ought to have ruled that the arrests were lawful. It is further submitted

that the awards were so excessive and disproportionate having regard to all the circumstances that no jury could reasonably have

awarded such damages. It is further submitted that the trial judge erred in awarding Detective Inspector Fennessy his costs against

the State appellants and ought to have required Detective Inspector Fennessy to bear his own costs in circumstances where the

State appellants were prepared to continue providing representation for Detective Inspector Fennessy at the trial.

5. Anselm (otherwise ‘Joe’) Walshe was born in 1942 and joined the Garda Síochána in 1965. After various postings, he ended up in

Limerick in 1974 and was transferred to the Plain Clothes Division of the Garda Síochána in Limerick in 1976. He was involved in the

investigation of serious crime and in due course became a full-time scene of crimes examiner in Limerick. He was also very active in

the GAA.

6. In May 1991, a number of months before his arrest, he was involved in an incident when he fell asleep in a car outside a pub in

Newtown Perry. This pub was owned by a man named Conway who was believed to have I.R.A sympathies. Some people drove him

home on the night in question then took his car and crashed it. It appears that as a result of this incident, a decision was made to

revert Garda Walshe to uniform duties, but no action had been taken on foot of this decision at the time of his arrest in September,

1991.

7. Because it also arose in the course of his subsequent detention, it is perhaps appropriate also to record that he had a cousin,

Sarah Duggan, who was involved in one of the republican movements and whose boyfriend was believed to be a member of the I.R.A.

Garda Walshe’s ex-directory telephone number was found in Sarah Duggan’s flat in the course of inquiries undertaken to ascertain the

source of the leaks within the Limerick Gardaí ranks. However, it is common case that Garda Walshe had reported this association

some considerable time prior to his arrest to his immediate superior, Detective Inspector Gerry O’Sullivan. Garda Walshe gave evidence

that he tried to persuade Sarah Duggan not to become involved in any republican activity. His friendship with Kay Bedford arose

through another friendship and also because Ms. Bedford lived beside the garda station and had asked him for help with passports and

the completion of forms of that nature. They also travelled up and down from Limerick to Nenagh together from time to time. Nenagh

is Garda Walshe’s home place and also a place that Kay Bedford used regularly visit .

8. On the 27th September, 1991, Garda Walshe received word that Superintendent Higgins, who was in charge of the station in Henry

Street, wished to see him. However, not long after he arrived he was, much to his surprise, arrested by Detective Inspector Fennessy

who informed him that he was arresting him under s.30 of the Offences against the State Act, 1939, on suspicion of membership of an

illegal organisation. Garda Walshe stated in evidence that he was shocked and horrified by this turn of events, not only because he

had nothing to do with the I.R.A. but because he had an aversion to that organisation and had constantly warned his own sons not

to get involved with organisations of that nature. He was led out of the station in full view of his colleagues and felt ashamed and

degraded. He was driven to Dublin and noted there were cameras and reporters outside the Bridewell garda station when he arrived.

He was given a copy of his rights in the early stages and put in a cell.

9. In subsequent interviews, he was repeatedly asked for his own views as to why he had been arrested. He was asked did he know a

Mr. Michael Edwards, an individual who was also of interest to his questioners. He was also asked about Sarah Duggan and repeated

the explanation which he had previously given. He also indicated to his questioners that he knew a family called Gavin who lived in

Patrickswell in a known republican location. He wondered if the fact that his car might have been seen there, or the fact he was

visiting the Gavins, might have been the reason for his arrest. He repeatedly stated he was not a member of the I.R.A. and had

nothing to hide.

10. On being returned to his cell he was unable to sleep that night and described interviews which followed the next day. The plaintiff

accepted, very fairly, that the persons interviewing him had been courteous and professional and he had not been mistreated in any

way. He was eventually released without charge at about 10:30am on the morning of 29 September, 1991, and driven back to

Limerick.

11. He further gave evidence that he was suspended and not restored to the force until the 17th October, 1991. He was told to

apply for his pay during the time when he was suspended. This was refunded to him. Thereafter he found life very difficult in Limerick

because he felt people were pointing him out as an associate of criminals and other undesirables. He was subsequently transferred to

Cloughjordan and was stationed there as a uniformed garda. It took him about 12 months to fully recover in a personal and

professional way from what had happened. He felt stigmatised by what had occurred and had brought the proceedings to vindicate

his name.

12. Detective Inspector Fennessy was the officer sent down from Dublin to Limerick in March, 1991, who was charged with

responsibility for discovering whether or not there was a member, or a number of members, of the I.R.A. within the Garda Síochána in

Limerick. It is clear from the evidence that the trigger for making the arrest of Garda Walshe was a direction to that effect given to

Detective Inspector Fennessy by Chief Superintendent Byrne, later Commissioner Byrne, at the end of a meeting attended by

Detective Inspector Fennessy in Garda Headquarters in Dublin. This was in the context of a plan to arrest on the same day another

garda, Garda Kelly, also based in Limerick, who was undoubtedly guilty of passing on information to the I.R.A. and was effectively

‘caught in the act’ on the day in question.

13. Insofar as the arrest of Garda Walshe was concerned, Detective Inspector Fennessy in the course of his evidence alluded to a

number of matters within his knowledge at the time. Firstly, he referred to a search carried out by members of the Garda Síochána of

premises occupied by Sarah Duggan, a cousin of Garda Walshe, and the discovery there of Garda Walshe’s telephone number which

was a telephone number not normally in the public domain. He also gave evidence of a second matter concerning Garda Walshe’s

presence in a public house known as Newtown Perry Public House where the owner was suspected of having an involvement with an

unlawful organisation. Garda Walshe’s car had been stolen in strange circumstances after he had been in these premises one night.

Thirdly, and more importantly, Detective Inspector Fennessy told the court that he had seen information about Garda Walshe which

was contained in a confidential document known as a C77. This document was not prepared by Detective Inspector Fennessy, but by

some other member of the Garda Síochána and was forwarded to Garda Headquarters in Dublin prior to the direction by Chief

Superintendent Byrne to effect to arrest of the plaintiff. This highly confidential secret intelligence document was the subject of a

public interest privilege claim, and while the plaintiff’s legal advisers sought discovery of this document at an earlier stage of the

proceedings, the claim of privilege was upheld by Costello J. in the High Court in rulings delivered in April and May, 1994, following his

own inspection of that and other documents. Detective Inspector Fennessy told the court that he had a suspicion about Garda

Walshe “based on the C77 which was sent to Garda Headquarters” and further told the court that because “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.”

14. In the course of the hearing before this court, Gerard Hogan, senior counsel for the State appellants, clarified the appellants’

position in various respects. Firstly, he stated that he was not relying on the material concerning Sarah Duggan and the Newtown

Perry pub to justify the arresting officer’s ‘reasonable suspicion’. Nor was the Patrickswell relationship being relied upon. What was

being relied upon was the fact that the information contained in the C77 was known to Detective Inspector Fennessy and was

sufficient in itself to ground reasonable suspicion, particularly in circumstances where it had been prepared by some other officer. In

addition, the arresting officer was entitled to have regard to the fact that his superiors in Dublin, to whom the C77 had been sent,

gave a direction to him to effect the arrest in question. However, Mr. Hogan made the concession that the direction to arrest if and

when taken alone would not, in the absence of the information contained in the C77 document, have provided a sufficient basis for

the formation of a reasonable suspicion.

Ruling of the Trial Judge as to legality of arrests

15. Having conducted a careful review of the evidence, the learned trial judge dealt with this issue in the following manner (Day 8 at

pp 18-24):-

“In evidence Detective Inspector Fennessy gave three reasons, or three potential grounds of why he might have entertained

suspicions. The first instance he referred to was the search by members of the gardaí of the premises then occupied by Sarah

Duggan who is a cousin of his, and the discovery there of Mr. Walshe’s telephone number which was a telephone number not

normally in the public domain. The second instance concerned his presence in a public house known as Newtown Perry Public

House where the owner was suspected of having an involvement with an unlawful organisation. There was a subsequent

instance when his car was stolen in strange circumstances. The third reason put forward by the State, and referred to by

Detective Inspector Fennessy, was information which Detective Inspector Fennessy said he had seen and which was contained

in a confidential document known as a C77.

In evidence, Detective Inspector Fennessy dealt with the first ground, that is the question of Sarah Duggan, and the discovery

of his telephone number, Mr. Walshe’s telephone number at the premises. In evidence Mr. Fennessy expressed himself

satisfied with the explanation which he had been given by Mr. Walshe in relation to that discovery. He indicated that Mr.

Walshe had been quite straight with him and had reported the fact that his cousin had been associating with members of an

unlawful organisation and marching in circumstances which gave rise to suspicion. Detective Inspector Fennessy described

himself as quite satisfied with the explanation, or indicated he was, and certainly his demeanour made it perfectly clear that

he was satisfied in those circumstances. In relation to the question of the incident at Newtown Perry - the public house in

Newtown Perry - which has been described in some detail, I am not going to go into it, and in relation to the information which

was discovered by Detective Inspector Fennessy in the C77.

It is of considerable importance to bear in mind that Detective Inspector Fennessy was the officer in charge of the

investigation in Limerick into the presence of a suspected mole within the Garda Síochána. If he had a suspicion in relation to

Mr. Walshe, he certainly did not see fit to require any investigation into Mr. Walshe in any respect, or in any manner.

One thing is clear, and was absolutely crystal clear from the evidence adduced by Detective Inspector Fennessy, and it was

something which he constantly repeated. Detective Inspector Fennessy did not arrest Mr. Walshe because he suspected that

Mr. Walshe was a member of the I.R.A. He did so because he was instructed to arrest Mr. Walshe by I think then

Superintendent, now Commissioner, Patrick Byrne. Detective Inspector Fennessy was at pains to repeat that constantly. And

it has to be borne in mind that Detective Inspector Fennessy was the person charged with the responsibility for discovering

whether or not there was a member, or a number of members of the I.R.A. within the Garda Síochána in Limerick.

Nonetheless, having in fact interviewed Mr. Walshe on one occasion at least, Detective Inspector Fennessy did not feel that it

was necessary to investigate Mr. Walshe in any respect.

Having listened carefully to the evidence, I am satisfied that while Detective Inspector Fennessy may have harboured some

doubts about Mr. Walshe in the weeks and days leading up to the arrest of Mr. Walshe, and he may have been to some extent

on inquiry, he did not harbour a real bona fide suspicion that Mr. Walshe was a member of the I.R.A. on the day when Mr.

Walshe was arrested. That was not the reason why he arrested Mr. Walshe. He arrested Mr. Walshe because he was directed

by then Chief Superintendent Byrne to do so, and because he was called back from a meeting which he was attending and

directed by Chief Superintendent Byrne to arrest Mr. Walshe. And he expressed himself as surprised to be asked to do so. But

he indicated that he obeyed what was an order and effected the arrest. It was the state of mind of Superintendent Byrne, or

then Chief Superintendent Patrick Byrne, now Commissioner Byrne which gave rise to the arrest the arrest of Mr. Walshe, not

that of Detective Inspector Fennessy.

When Detective Inspector Fennessy attended the meeting in Dublin with then Chief Superintendent Byrne, he did not harbour a

suspicion which warranted the arrest of Mr. Walshe. And he was the officer in charge of the investigation, which was seeking

to discover whether or not there was any member of the Garda Síochána in Limerick who was a member of the I.R.A.. When

he attended that meeting he did not harbour a real doubt or a real suspicion of that kind. He received no additional information

from Chief Superintendent Byrne which would have altered his state of mind in any way. And he made that perfectly clear. He

said he was not investigating Mr. Walshe and he remained clear that he had no intention of investigating Mr. Walshe. How in

those circumstances can I find that Detective Inspector Fennessy had a real bona fide suspicion that Mr. Walshe was a

member of the I.R.A. on that occasion? An arresting officer is entitled to arrest under s.30 of the Offences against the State

Act if he suspects a person has committed an offence, particularly in this instance an offence identified in the Schedule to the

Act, but the suspicion which he harbours must be a real suspicion, not a whimsical suspicion. The rights of citizens to their

liberty are too important to permit arrests on grounds other than real and justified suspicion.”

16. Having reviewed some legal authority, the learned trial judge then continued:-

“Mr. Hogan in turn very properly and fairly acknowledges that it is the state of mind of the arresting officers which should be

considered in order to determine this issue. And in that respect, there isn’t an enormous inconsistency in relation to his

position.

I am satisfied according to the balance of probabilities that the arrest of Mr. Walshe by Detective Inspector Fennessy was

unconnected with any doubts which he may have had about Mr. Walshe and unconnected with any suspicion, if suspicion it can

be called, that he may have entertained, but I do not regard it as a real suspicion in the sense which is contemplated by the

Act.

As I have indicated, the onus rests upon the defendants to prove that the arrest of Mr. Walshe on the 27th September, 1991,

was valid. I am not satisfied on the evidence and on the balance of probabilities that the defendants have discharged that

onus”.

The Law

17. The object of the Offences against the State Act, 1939, is expressed in its long title to be:-

“… to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State

and for that purpose to provide for the punishment of persons guilty of offences against the State, to regulate and control in

the public interest the formation of associations, to establish special criminal courts in accordance with Article 38 of the

Constitution and provide for the constitution, powers, jurisdiction and procedure of such courts, to repeal certain enactments

and to make provision generally in relation to matters connected with the matters aforesaid.”

18. As was noted by Walsh J. in the The People (DPP) v. Quilligan [1986] I.R. 495, the specific offences aimed at in Part II of the Act

are:-

“(a) The usurpation of the functions of Government;

(b) The obstruction of Government (including attempts by force of arms or other violent means or any other forms of

intimidation to prevent the exercise by the President, the members of the Oireachtas, the Judiciary, or the Executive of the

State, or the State employees of any of their powers or functions);

(c) Illegal drilling and other military exercise;

(d) The formation or maintenance of any secret society in the army or the police force; (emphasis added)

(e) The administering of unlawful oaths”

19. It goes without saying that the undermining of a nation’s police force as a result of the infiltration of its ranks or members by

unlawful armed organisations is a matter which goes to the very essence of State security.

20. Section 30(1) of the 1939 Act provides:-

“A member of the Garda Síochána…may without warrant… arrest any person… whom he suspects of having committed or

being about to commit or being or having been concerned in the commission of an offence under any section or subsection of

this Act or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act…”

21. It is not in dispute between the parties that the member of the Garda Síochána who effects an arrest under s.30 must have a

bona fide suspicion which is not unreasonable. As Walsh J. put it in The People (DPP) v. Quilligan [1986] I.R. 495 at 506:-

“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 the 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 of 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.”

22. Various authorities, both here and in the United Kingdom, confirm that where a statutory power of arrest of this kind exists, it is

the state of mind of the arresting garda or policeman alone which is critical. As was confirmed by this court in the recent decision in

The People (DPP) v. Tyndall (unreported, 3 May, 2005) the suspicion does not have to be proved in any particular manner and may be

established either by direct evidence or may be inferred from the circumstances. Nevertheless it is a fact which must be established

before an arrest under the section may be regarded as lawful.

23. I now turn to briefly consider the role in all of this of a direction to arrest given by a superior officer. At the outset, having regard

to the concession made by counsel for the appellants that a “direction alone” is insufficient, it is only necessary in this case to

determine whether or not such a direction, taken in conjunction with the other material or information which was within the

knowledge of the arresting officer, may be seen as sufficient.

24. I would however see the concession made on behalf of the State appellants about a “direction alone” as somewhat surprising

having regard both to the particular facts of this case and having regard also to the decision of the Court of Criminal Appeal in The

People (DPP) v. McCaffrey [1986] I.L.R.M. 687.

25. In that case the arresting officer stated in direct evidence that he arrested the applicant under s.30 of the Offences against the

State Act, 1939, on suspicion of having committed a scheduled offence, namely, possession of a firearm with intent to endanger life.

On cross-examination he agreed he had no suspicion of his own with regard to the applicant. This statement was elaborated on by

him in re-examination when he said in effect that the source of his suspicion was a direction to him from Chief Superintendent

McNally, the garda officer in charge of the investigations, to arrest the applicant on suspicion of having committed a crime which had

involved firearms and ammunition.

26. In delivering the judgment of the court, Henchy J. stated (at 688):-

“It is true that he (Sergeant Balfe) agreed under cross-examination that he had no suspicion of his own with regard to the

applicant. But that is not the same as saying that he had no suspicion with regard to the applicant. It seems to the court that

the effect of Sergeant Balfe’s evidence as a whole was that he arrested the applicant under s.30 on suspicion of having

committed a scheduled offence, that he himself was not the author of that suspicion, and that in fact it derived from the

direction to arrest which he had got from chief Superintendent McNally. The argument propounded on behalf of the applicant

rests on the idea that the effect of the evidence was that while the chief superintendent had the required suspicion, the

sergeant had not. In the opinion of the court, that is not a correct interpretation of what the sergeant said. He unambiguously

stated that his purported arrest under s.30 of the applicant was on suspicion that a scheduled offence had been committed.

The fact that the suspicion derived not from the sergeant’s own mental processes but from the opinion of a superior officer

made no difference for the purpose of the validity of the arrest. All that was necessary to show was that at the time of the

arrest the sergeant had the required suspicion, however arrived at. The court is satisfied that the evidence given was

sufficient to support the ruling of the Special Criminal Court that the requirements for a valid arrest under s.30 had been

complied with.

The construction put in s.30 in support of the application involves the requirement that no member of the Garda Síochána

may make an arrest under s.30 unless he has personally acquired, by investigation, sufficient information relative to the

arrested person to warrant his suspecting that person of an offence to which s.30 applies. It is a corollary of this reasoning

that if a number of gardaí involved in the investigation of crime or circumstances of the nature envisaged in s.30 should

individually form no suspicions on information personally obtained but collectively pass on all their information to a superior

officer who, as a result, forms a suspicion concerning a particular individual, that that superior officer alone would be

authorised by s.30 to make the arrest. This conclusion may be qualified to the extent, however, that if such a superior officer

designated or instructed any other member of the Garda Síochána to make an arrest under s.30, the Superintendent would

have to furnish that member with sufficient of the collected information, whether confidential or otherwise, to ensure that the

member would himself then form the suspicion corresponding to that already entertained by his instruction superior officer.

Such an interpretation of s.30 would be inconsistent with the declared objective of the Offences against the State Act, 1939,

namely, ‘to make provision in relation to actions and conduct calculated to undermine public order and the authority of the

State’. This interpretation of the wording of s.30 necessarily follows from the submission that the suspicion upon which an

arrest under s.30 is authorised must be personal only to the member of the Garda Síochána by whom the arrest is made. As

we find this submission unsound in law and unacceptable, the grounds of appeal which are dependant upon it must fail.”

27. In the present case the direction to arrest did not come out of a clear blue sky. Nor was it given to an arresting officer who had

no other information in relation to the background circumstances. It was given following lengthy investigation by Detective Inspector

Fennessy into possible infiltration of garda ranks by the I.R.A. in Limerick and the preparation of a C77 briefing document containing

highly sensitive information, including the naming of the two plaintiffs as suspected members of, or sympathisers with, the I.R.A. This

document was seen by Fennessy and was sent to Garda Headquarters prior to the direction to arrest. The direction to arrest then

emanated from that very source at the end of a meeting in Dublin attended by Detective Inspector Fennessy. I find it difficult to

understand how in those particular circumstances the direction to arrest would not provide the basis for, or at least constitute a

considerable makeweight in, the formation of a bona fide and reasonable suspicion by Detective Inspector Fennessy. While some of

the information in the C77 was later found to be incorrect, some of it was clearly correct, given that another local suspect in the

inquiry, Garda Kelly, was, on the day of the arrests, apprehended in the act of passing on information in the manner suspected.

28. The role and significance of a direction to arrest given to a subordinate by a superior officer was considered by the House of

Lords in McKee v. Chief Constable for Northern Ireland [1984] 1 W.L.R.1. Here a police officer was held entitled to have an honest

suspicion merely from the fact of instructions given to him by his superior, since an arresting officer was not bound and indeed might

not even be entitled to question those instructions or to ask on what information they were founded. Accordingly since the arresting

officer had honestly suspected the respondent of being a terrorist, the arrest was lawful and the Chief Constable’s appeal was

therefore allowed. In the course of his speech Lord Roskill stated (at p. 1361):-

“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 on what

information they are founded.”

29. The relevant provision of s. 11 of the Northern Ireland (Emergency Provisions) Act, 1978 provided:-

“Any constable may arrest without warrant any person whom he suspects of being a terrorist”

30. That section, no more than s.30 of the Offences against the State Act, 1939, contained no specific statutory requirement for the

existence of reasonable grounds. The House of Lords held in McKee that the suspicion had to be honestly held, but that it need not

be a reasonable suspicion. Nonetheless, Lord Hope in the later case of O’Hara v Chief Constable of R.U.C. (H.L.)(N.I.)[1997] A.C. 286

stressed (at p 299) the relevance of the foregoing citation when interpreting the somewhat differently worded section 12(1) of the

Prevention of Terrorism (Temporary Provisions) Act, 1984, which provided:-

“ .. 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…”

31. In O’Hara, the plaintiff had been arrested by a Detective Constable Stewart following a briefing which he attended at the police

station in Derry. The purpose of the briefing was to mount an operation to search houses and to arrest a number of people in

connection with the murder of Mr. Kurt Koenig some months previously. The briefing was conducted by Inspector Browne and was

attended by a number of other police officers. After the briefing, Detective Constable Stewart went with a search party to a

particular address where he arrested the appellant. His evidence was that his reasonable grounds for suspecting that the appellant

was involved in the murder were based on the briefing which he had received, in the course of which he was told that the appellant

had been involved in the murder. He was also told to arrest him. In cross-examination he said that he had no other basis for the

suspicion apart from what he had been told at the briefing and neither party sought to elicit from him the details of the information

which the briefing contained.

32. In upholding the lawfulness of the arrest, Lord Hope in the course of his speech stated (at p. 296):-

“It is important to observe that the position of the arresting officer was not simply that he had been told to arrest the

plaintiff. Nor was it that he had simply been told that the plaintiff had been concerned in the commission, preparation or

instigation of acts of terrorism. His position, as stated by him in evidence, was that he suspected the plaintiff of having been

concerned in such acts, and that his suspicion was based on the briefing which had been given to him by his superior officer.

The trial judge accepted the arresting officer’s evidence on both points. The question is whether he was entitled also to hold

that the arresting officer had reasonable grounds for this suspicion, as the only evidence about these grounds was what the

arresting officer himself said about them in the witness box.”

33. In considering whether there were reasonable grounds for the suspicion in the particular case, Lord Hope continued as follows (at

p.298):-

“The test which s.12 (1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the

mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a

genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one,

because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective

test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in

his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the

objective test requires is that these grounds be examined objectively and that they be judged at the time when the power

was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were

reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in

the mind of the arresting officer. It is the arresting officers own account of the information which he had which matters, not

what was observed by or known to anyone else. The information acted on 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, perhaps in the course of an

emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it

is not necessary to go on to prove what is known to his informant or that any facts on which he based his suspicion were in

fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and

its context, seen in the light of the whole surrounding circumstances.”

34. In O’Hara, examples were also given of cases where the legality of arrests could be upheld where the action of a police officer

who exercised his statutory power of arrest or of search was taken as a member of a team of police officers, or where his action was

the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from

other police forces. Lord Hope observed (at 301.2):-

“For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or

where to search and in what circumstances. The statutory power does not require that the constable who exercises the

power must be in possession of all the information which had led to a decision, perhaps taken by others, that the time has

come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped

himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.”

35. Lord Hope concluded his judgment by summing up the law in the following manner:-

“What Parliament has enacted in s.12(1)(b) of the Act of 1984, as in the other statutes to which I have referred, is that the

reasonable suspicion has to be in the mind of the arresting officer. So it is the facts known by or the information given to the

officer who effects the arrest or detention to which the mind of the independent observer must be applied. It is this objective

test, applying the criterion of what may be regarded as reasonable, which provides the safeguard against arbitrary arrest and

detention. The arrest and detention will be unlawful unless this criterion is satisfied.

In this case the evidence about the matters which were disclosed at the briefing session to the arresting officer was indeed

scantly. But …the trial judge was entitled to weigh up that evidence in the light of the surrounding circumstances and, having

regard to the source of that information, to draw inferences as to what a reasonable man, in the position of the independent

observer, would make of it. I do not think that either the trial judge or the Court of Appeal misdirected themselves as to the

test to be applied. I would dismiss this appeal”

36. It is important to keep in mind that the statutory provision under consideration in O’Hara specifically demanded the existence of

reasonable grounds so as to usher in an objective test in relation to the reasonableness of any suspicion formed by an arresting

officer. For the purposes of the present case, however, counsel for the State appellants has not sought to differentiate between the

legal position in Ireland in the aftermath of D.P.P. v Quilligan insofar as s. 30 of the Offences against the State Act, 1939 is

concerned, and that in the United Kingdom as set out in O’Hara in relation to a differently worded statutory provision then operative

in that jurisdiction.

37. Without in any way trying to fix or lay down a template of what is appropriate in all cases, these authorities clearly demonstrate

that the relevant suspicion is that of the arresting officer alone. It is not the arresting officer’s subjective belief which is the critical

or determining factor. It is a suspicion which, to be found ‘not unreasonable’, must find some objective justification from the

surrounding circumstances and the information available to the arresting officer. It is a suspicion which in my view may be informed by

a direction to arrest given by a superior officer, particularly in the circumstances of this case where the direction must be seen

against the background of all the other background circumstances found to have been proven at the time when the direction to

arrest was given. Even if a direction alone is never to be taken as sufficient, and I don’t wish to be taken as so holding or deciding,

the authorities establish that something quite small in addition will suffice to constitute the material from which a bona fide and

reasonable suspicion may be formed. It may be a briefing session or document. It may be hearsay material coming by way of

confidential information. It may be no more than a short verbal account given by a superior officer to the officer who will make the

arrest. It may also derive and be inferred from the surrounding circumstances as this court recently emphasised in D.P.P. v Tyndall

(unreported, 3rd May, 2005 per Denham J).

Decision

38. This is not a case where there is any suggestion of mala fides on the part of the appellants. Nor is it a case where it is alleged or

suggested that Garda Walshe was ill-treated whilst in custody, although the circumstances of his arrest and detention must have

been the source of great hurt and distress to him.

39. What is plain beyond doubt, however, is that the arresting officer had, prior to the direction to make the arrest, and the arrest

itself, the information contained in the form C77, in which both plaintiffs were named. This document has been described as a highly

sensitive and confidential document prepared by some officer other than Detective Inspector Fennessy in the course of the very

inquiry which led to a number of arrests, including it would appear some other garda officer who was subsequently tried and convicted

in the Special Criminal Court. The information contained in the C77 was actually seen by Detective Inspector Fennessy and the

document itself was forwarded by the same officer to his superiors in Dublin prior to the meeting which culminated in the instruction

from his superior officer to effect the arrest of the plaintiff.

40. Unfortunately the ruling of the trial judge did not fully address the importance or significance to the C77 or its contents, some

details of which were nonetheless given in evidence. Insofar as the role of the C77 at the trial was concerned, the learned trial judge

maintained the ruling of privilege in respect of the document which had been previously made and upheld by Costello J. He did not,

however, read the document himself, so that it must inevitably follow that the court’s ruling on reasonable suspicion was based on

less information than was available to Detective Inspector Fennessy himself, which strikes me as a notable feature of this case. In

fairness to the trial judge, counsel for the State appellants had not made clear until a very late stage in the case his intention to seek

a ruling that the court, and not the jury, should adjudicate on the lawfulness of the arrest. This had the effect that the court was

not called upon to focus on the most critical grounds for the arresting officer’s suspicions, even if the salient points of the C77 were

referred to by Detective Inspector Fennessy in the course of his evidence.

41. I will therefore at this point turn to an evaluation of the importance of the C77 in the context of the requirement to consider if

there were adequate grounds for the formation of a reasonable suspicion. On Day 3 of the trial, Detective Inspector Fennessy gave

evidence that he had seen the C77 which identified Garda Walshe as a person who was associating with and passing information to

one Michael Edwards, a known member of the I.R.A. (p.117 and 121). On Day 4, Detective Inspector Fennessy again confirmed that

he had seen the secret document in which it was stated that Garda Walshe was associating with a named member of the I.R.A. (p.5).

In cross-examination by counsel for the State appellants, Detective Inspector Fennessy further confirmed that he had a suspicion

that Garda Walshe was a member of an unlawful organisation, namely, the I.R.A., “based on the C77 which was sent to Garda

Headquarters” (p.32). Later, under cross-examination by counsel for the plaintiff, Detective Inspector Fennessy stated that the

intelligence itself on the secret form, whether it was checked out or not, would be very suspicious and would give reason to have an

opinion that something was “very wrong” (p.47). Detective Inspector Fennessy then stated (at p.48):-

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

tasked with the job to arrest a policeman, Denis Kelly, an I.R.A. mole in the Garda Síochána. Anselm Walshe was not my task in

Limerick but because of the suspicions - and there 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.”

42. At p.67, Detective Inspector Fennessy stated that, if left to his own devices, he would not have made the arrest until he had

enquired further into the nature of the suspicion raised by the C77 (p.67). However, notwithstanding that consideration, his own

authorities might have done that unknown to him (p.67).

43. I am quite satisfied that the contents of the C77document such as were detailed in evidence are, when taken in conjunction with

the direction, cumulatively sufficient to satisfy the requirements laid down in The People (DPP) v. Quilligan [1986] I.R. 495. It is not

necessary to consider whether, taken individually and separately, either alone would suffice. The C77 is a document prepared by

some other member of the force which specifically names Garda Walshe as a person suspected of associating with, and leaking

information to Michael Edwards, a member of the I.R.A., about garda operations in Limerick. It has an existence and importance

independent of Detective Inspector Fennessy, a factor I would view as being of great significance in providing material or grounds for

the formation of the suspicion required by the section, which, as this court held in Quilligan, must be one which is “not unreasonable”

.

44. I think counsel for the appellants is correct when he states that the learned trial judge elided the distinction between having a

bona fide and reasonable suspicion on the one hand and the reason for making the arrest on the other.

45. It is undeniable that the reason for making the arrest was the direction given by the superior officer. However that does not mean

that the arresting officer did not have his own reasonable suspicion based on the information already in his possession from his perusal

of the C77. The fact that he had not made any arrest up to that point, or investigated Walshe further, is not the issue. One can think

of many examples in this regard where one can have the suspicion but not act. For example, a security guard may have a bona fide

and reasonable suspicion that a customer in a shop is shoplifting on a regular basis, but may not act on that suspicion until a

triggering event occurs. There can be all sorts of discretionary considerations to explain why a person who harbours a bona fide and

reasonable suspicion might not progress to executive action until some triggering event takes place. An obvious example would be the

case where one does not have the requisite evidence which would be both admissible in a court of law and sufficiently probative to

result in the conviction of a suspect.

46. I think Detective Inspector Fennessy did have all the material necessary to form a reasonable suspicion at the time of the arrest.

I further believe that any independent observer, applying an objective test, would so conclude and that the criterion in this case was

satisfied for the reasons stated.

47. I would therefore allow the appeal in the case of Garda Walshe and substitute instead a finding that the arrest of Garda Walshe

was valid and lawful. Counsel for the plaintiff did not demur from the proposition that this was the appropriate course for the court to

adopt in the event of a finding that the ruling of the learned trial judge was found to be in error on this issue. It follows, therefore,

that the award of damages in favour of Garda Walshe must be set aside.

48. I have, however, reached a different conclusion in respect of Kay Bedford. Bearing in mind at all times the concession made on

behalf of the State appellants that a direction from a superior officer alone is not sufficient to ground a reasonable suspicion, one

must then inquire what additional material was available to inform the mind of the arresting officer, Sergeant O’Shea.

49. Plainly, the learned trial judge was not impressed with the evidence tendered on behalf of the appellants in this regard and implicit

in his ruling is a level of disquiet as to the credibility of the evidence offered by that witness.

50. Sergeant O’Shea never saw the C77.

51. When questioned as to the grounds for his suspicion, the arresting officer merely stated that her name had “cropped up” on

occasions, a statement so nebulous and general in nature as to be virtually meaningless.

52. Counsel for the appellants has further pointed us to other references in the evidence of Sergeant O’Shea in which he stated his

belief that Ms. Bedford was “associating with members of the I.R.A.” (Day 5 Q 351/2). In the course of his evidence Garda O’Shea

also stated (Day 5, Q 355):-

“Kay Bedford’s name came to my knowledge in the course of enquires and investigation at the time into I.R.A. activities in the

area.”

53. This evidence seems to me to fall well short of even the relatively limited extra amount of material which the English authorities

suggest might be required by way of addition to an instruction to arrest from a superior officer so as to ground a reasonable suspicion

under s.30.

54. It is evidence of the most general kind, with no specifics, no detail, and no context. It has no separate corroboration, in that no

evidence was called which would corroborate or lend substance to what is no more then a mere assertion.

55. I would therefore be of the view that the appeal in the case of Kay Bedford should be dismissed. In so far as quantum is

concerned I can conceive of very few things more damaging than to be wrongfully arrested on suspicion of being a member of the

I.R.A..

56. Her arrest occurred just as she was preparing to go out on the particular evening and she was totally unprepared for the high

speed journey to Dublin and her subsequent incarceration in the Bridewell. It further appears that the arrival of both Garda Walshe

and Ms. Bedford was known to the press and that there may have been a press presence at the entrance to the Bridewell. While the

evidence on this matter was fairly sparse, objection having been taken by counsel for the appellants that no pleading in Garda

Walshe’s case had been made to include such particulars, the fact that there was a media presence does not appear to be

contested. The only relevance of this in the present case is to indicate how the fact of the arrests became more widely known in the

locality in which the plaintiff resides. That it did so is undeniable, and the plaintiff gave graphic evidence of how she lost a number of

friends and suffered great humiliation as a result of her ordeal. The jury had every opportunity to view the demeanour of the witness

and make its own assessment of the distress this whole experience must have caused to Ms. Bedford.

57. I would not regard the award of damages in her case as being in any way excessive and would dismiss the appeal in her case.