Neutral Citation no. [1999] 1896

Ref:

SHEE2752

 

 

 

Judgment: approved by the Court for handing down

Delivered:

24/02/99

(subject to editorial corrections)

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

QUEEN'S BENCH DIVISION

 

------------

 

BETWEEN:

 

ADRIAN PORTER

Plaintiff;

 

and

 

THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

 

Defendant.

 

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SHEIL J

 

The plaintiff in this action alleges:

(1) that on 18 October 1993 at 9.22pm he was unlawfully arrested by the police at 22 Glenburn Road, Glen Estate, Newtownards, the home of a girlfriend of Robert Thompson, in connection with shots which had been fired at/in William Kirk's house at 119 Blenheim Drive, Newtownards on the day before, 17 October 1993;

(2) that that same evening he was taken unlawfully in custody to Gough Barracks in Armagh where he was unlawfully imprisoned by the police for two days, during which time in the course of a number of interviews on 19/20 October 1993 he was questioned solely about the shots fired at/in William Kirk's house on 17 October 1993;

(3) that on 20 October 1993 he was informed at Gough Barracks that he was being released without charge, but that he was then unlawfully detained there for another 20 minutes approximately to allow time for other police officers to arrive, who then wrongfully arrested him on three different matters, namely having threatened Robert Thompson and William Kirk with a revolver and being in possession of a revolver with intent to endanger life between 1 October 1992 and 28 February 1993;

(4) that he was then taken unlawfully in custody to Newtownards Police Station where he was wrongfully detained and questioned about the three different matters together with a further matter involving a stolen radiator;

(5) that at 2.43pm on 21 October 1993 at Newtownards Police Station he was wrongfully charged with having threatened Robert Thompson and William Kirk with a revolver and having been in possession of the said revolver with intent to endanger life between 1 October 1992 and 28 February 1993;

(6) that he was then taken before Newtownards Magistrates' Court on those three charges where, on foot of a malicious prosecution, he was then remanded in custody to the Crumlin Road Prison;

(7) that he was refused bail in the High Court on 25 October 1993 when the court was wrongfully told that he was a member of a Red Hand Commando unit and that he had allegedly said to the police that he would go to Scotland if released;

(8) that, having been granted bail on conditions by the High Court on 15 December 1993, he thereafter had to attend remand hearings until 27 July 1994 when, on the direction of the DPP, the three charges against him were withdrawn and he was released.

The plaintiff's allegations of physical assault while in the custody of the police were not pursued on the trial of this action.

The plaintiff, who is aged 32, having been born on 13 May 1966, lives at 294 Belfast Road, Dundonald and is unemployed. He accepts that prior to his arrest on 18 October 1993 he was known to the police as he had a criminal record, mainly for offences of dishonesty and motoring offences; he also had a conviction for assault occasioning actual bodily harm. William Kirk was also known to the police, having a criminal record mainly for offences of dishonesty and motoring offences; he also had a conviction for assault occasioning actual bodily harm. Robert Thompson was also known to the police, having a criminal record mainly for offences of dishonesty and motoring offences. None of them had any conviction for any offence of a terrorist or paramilitary nature.

Detective Sergeant Black, who was a member of the CID, was the principal witness called on behalf of the defence in this action as the allegations were mainly directed at him. On 18 October 1993 he went to William Kirk's house at 119 Blenheim Drive, Newtownards to make enquiries concerning an alleged shooting there on the previous evening. He spoke to William Kirk and to his wife, neither of whom had seen the gunman who had fired the shots. He subsequently spoke to a neighbour of the Kirk's who told him that she had seen two people come out of the rear of Kirk's house on the previous evening, 17 October 1993, and that she was sure that one of them was Adrian Porter, the plaintiff in this action, whom she knew well; this lady declined to make a written statement, telling Detective Sergeant Black that she was afraid to do so. At that time Detective Sergeant Black knew of Adrian Porter, although he himself had had no previous direct dealings with him. Having reported to Detective Sergeant Doherty and Chief Inspector Thompson, it was decided to arrest Adrian Porter and to search his house at 294 Belfast Road, Dundonald, on suspicion that he had been involved in the alleged shooting at Kirk's house on the evening of 17 October 1993.

Having made some further enquiries, Detective Sergeant Black briefed Constable Cox to go to 22 Glenburn Road, Glen Estate, in Newtownards, the home of Susan O'Rawe, who was a girlfriend of Robert Thompson, and there to arrest Adrian Porter on suspicion that he had been involved in the shooting at Kirk's house on the evening of 17 October 1993. Detective Sergeant Black, who was present at the time of the arrest, had directed Constable Cox to arrest Porter under Section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 as he considered that Porter was an active terrorist. The plaintiff was removed in custody to Gough Barracks in Armagh for questioning.

Detective Sergeant Black then returned to Kirk's house where he spoke further to Kirk and his wife, both of whom appeared to him to be very nervous and frightened. On the following day, 19 October 1993, he took a written statement from William Kirk, which was produced to the court. As appears therefrom, Kirk never saw the person or persons who allegedly fired the shots at/in his house on the evening of 17 October 1993. In the course of that statement Kirk referred to his previous history of involvement with Adrian Porter including drinking sessions with him in Porter's house and stated that in the course of one of those earlier drinking sessions, which also included some drug taking, incidents allegedly had occurred which later became the subject of the three different charges involving possession of a revolver with intent to kill William Kirk and Robert Thompson between 1 October 1992 and 28 February 1993. In the course of that statement, in which Kirk made no mention of any threat with a gun against Thompson, Kirk stated with reference to what were to become the later three different charges:

"On one of these drinking sessions I ended up in Adrian's house in the company of his girlfriend, Susan O'Rawe. I was with Susan on my own for about 20 minutes. Adrian was away and he arrived home again. He was very offensive. He questioned Susan saying things like `what has he been doing?' He became paranoid and suspected something was going on between me and Susan. There was a brief bit of banter. I told Adrian his head was away since he started to take the steroids. At that Adrian went into the bedroom and arrived back into the living room with a gun that looked like the ones police carry on the street. The gun had a revolving chamber. Adrian was frothing at the mouth and shaking. He had gone berserk. He was cocking and pointing the gun at my head and pulling the trigger. He did this twice, he had the gun pointed near my head about 18 inches away. I thought I was dead. I believed the gun was real and I totally froze. Rab Thompson was there; he had brought Adrian back to the house. Rab grabbed me and got me out into the yard. Susan was hysterical and Rab was excited and he was able to get me out. Adrian came out and was shouting, `come on Kirk, let's be having you.' I was full of drink and jellies. I was introduced to these drugs in July 1992 by Adrian. I believe on that night that Adrian had got me into my condition to beat me up because of grudges between us in connection with the business."

 

Detective Sergeant Black then faxed that statement to Gough Barracks in Armagh, where the plaintiff was still being held.

On the late afternoon/early evening of 20 October 1993, following his return from Gough Barracks to the police station in Newtownards, Detective Sergeant Black took a statement in writing from Robert Thompson relating to the alleged threats with a gun on Kirk and Thompson between 1 October 1992 and 28 February 1993, the relevant part of which reads as follows:

"I know Adrian Porter who lives at 294 Belfast Road, Dundonald. Porter had a revolver at his house. About 8 months ago or 10 months ago I was in Porter's house; Billy Kirk and Susan O'Rawe were there. We were drinking and dropping pills. Porter supplied the drink and drugs. Me and Porter were out in his car; we came back about half an hour or three-quarters of an hour later. Because Susan and Kirky were on their own, Porter accused Kirky of trying to get off with Susan. They argued for a while and then Porter brought a gun out of one of the bedrooms. He pointed the gun at Kirky's head and threatened to blow his brains out. I know it was a real gun because I had seen it before at Porter's house. It was a revolver. He pulled the same gun on me that morning in his own house. He was accusing me of stealing tablets on him. Adrian collected me to go to work in the morning at my own house. We had a bit of running about to do to get building materials for work at his house. We arrived at his house at about 11.00am. I was in the kitchen making a cup of coffee. He came into the kitchen with the revolver pointing at me. he said something like, if you steal any more tablets on me that he would be using the gun on me. I found out later that day that he had given the tablets to Billy Kirk, that's the ones he was accusing me of stealing. I know it was a real gun by the barrel, there was no blockages down it. It was a steel barrel with a wooden handle, brown colour. It was the same gun I'd seen about a week earlier. I saw him taking a plastic bag with the gun in it out of a pile of quarry dust just inside his gate. He placed the gun in his house. A couple of days later I was working in his house, the gun was still in the bag above the wardrobe in his bedroom. It wasn't a plain bag, it had some markings on it. I came across the bag when I was working in the house. I lifted the bag, it was heavy. I looked into the bag and in my mind it was a real gun. Within a couple of weeks from the Kirky incident when he was threatened with the gun, Porter went into his garage, I heard four shots getting fired somewhere to the back of the garage. There's a wee door that leads out of the garage to waste ground at the back. It had to be Adrian firing the shots. Adrian came out of the garage, nothing was said to me."

 

While Detective Sergeant Black was back at Newtownards Police Station that evening, 20 October 1993, he contacted Detective Chief Inspector Caskey and Constable Catterson, both of whom were still with the plaintiff at Gough Barracks in Armagh and discussed the matter of the alleged threats by Porter to kill Kirk and Thompson with a revolver between October 1992 and February 1993. Detective Sergeant Black told Catterson to re-arrest Porter at Gough Barracks on those three different charges. Detective Sergeant Black stated that he told Constable Catterson to carry out that arrest after Porter had been released at Gough Barracks, where he was still being held in relation to suspicion of having been involved in the incidents at Kirk's house on the evening of 17 October 1993. He agreed however that he would not have regarded the plaintiff as having been free to leave Gough Barracks at any time prior to his re-arrest there. Following Porter's re-arrest at Gough Barracks, he was conveyed back in custody to Newtownards Police Station where he was seen by Detective Sergeant Black who conducted an interview with him between 9.40 and 10.34pm concerning the three different charges. Detective Sergeant Black read out to Porter the statements taken by him from Kirk and Thompson; Porter replied that they were rubbish and that there was no truth in them. Detective Sergeant Black stated in evidence that, having seen and interviewed William Kirk and his family, he had no doubt in his own mind that Kirk was fearful for his own safety and that of his family and that the contents of his statement of 19 October 1993 were true and that they had been confirmed by the statement made by Robert Thompson. On 21 October 1993 Detective Sergeant Black had a further interview with Porter concerning the three different charges when he questioned him concerning holes found in a coal bunker, a damaged van and an oil drum at the rear of Porter's house; Porter informed him that these holes had been made by a Mr Casson, who had a legally held shotgun or air rifle. Later that same day, the plaintiff was formally charged on those three different charges and was taken before Newtownards Magistrates' Court where he was remanded in custody.

Detective Sergeant Black gave evidence that on 22 October 1993 he had returned to Kirk's house at 119 Blenheim Drive, Newtownards where Kirk informed him that he had been approached by a man who informed him that a named paramilitary and two other persons would attempt to have Kirk and Thompson swear an affidavit that their earlier statements to the police had been untrue. Detective Sergeant Black stated that in his opinion the named paramilitary was a member of the UFF. Kirk informed Detective Sergeant Black that he would not withdraw his statement and that he was prepared to give evidence against Porter. It was this information which formed the basis of instructions to counsel to oppose Porter's application for bail in the High Court on 25 October 1993 on the ground, inter alia, that Porter was believed by the police to be a member of a Red Hand Commando Unit.

On 13 December 1993 Robert Thompson withdrew the terms of the statement made by him on 20 October 1993. While William Kirk did not withdraw his statement, counsel for the plaintiff, Mr Horner QC, submits that the statement made by Kirk on 19 October 1993 was not worthy of belief.

A report dated 26 November 1993 obtained from a fire arms expert, Mr Milburne who had been retained on behalf of the plaintiff, showed that the holes in the coal bunker, van and oil drum at the rear of Kirk's house had not been made by a revolver but by a shotgun or air rifle; this report had been forwarded to the DPP on 30 November 1993 and was later confirmed in a report obtained by the police from Brian Thompson, a forensic scientist, on 13 December 1993.

The three charges against Adrian Porter were not withdrawn until he last appeared before the Magistrates' Court on 27 July 1994 when a preliminary enquiry was due to be heard. In the meantime he had eventually been granted High Court bail on conditions on 15 December 1993, having been refused bail on 25 October and 2 December 1993.

Mr Horner submits that the prosecution against Porter was a malicious prosecution instigated by Detective Sergeant Black. Detective Sergeant Black maintained in evidence in this court that he would have been happier if the charges had not been withdrawn against the plaintiff as he was still satisfied in his own mind as to the truth of the statements made by Kirk and Thompson to him; he stated that he had seen Kirk's fear at first hand when he interviewed him, unlike those in the DPP's Office who decided to withdraw the charges. He stated that, in his opinion, when Thompson filed an affidavit withdrawing his statement of 20 October 1993, he did so under threat and that still remains his opinion. He stated that the fact that no revolver was ever found in the course of searches carried out by the police did not surprise him.

In cross-examination by Mr Horner on behalf of the plaintiff, Adrian Porter, Detective Sergeant Black stated that, from what he had heard about Porter prior to 18 October 1993, he regarded him as an active terrorist and professional criminal and that "he would have loved to have seen him locked up". He denied however that he had any malice against the plaintiff in initiating and maintaining the three charges against him and that his concern had been for the safety of William Kirk and his family. He stated that he had seen for himself one bullet mark in the kitchen in Kirk's house. He accepted that the neighbour, who had said that she had seen Porter come out of the rear of Kirk's house on the night in question, had not said that he had a gun. Detective Sergeant Black also accepted in cross-examination that prior to 18 October 1993 Kirk had never reported the alleged threats made by Porter some 9 months earlier and that the alleged events described by Kirk in his statement had, on Kirk's own admission, taken place at a drink and drugs party. In further cross-examination by Mr Horner QC, Detective Sergeant Black maintained his opinion that in the light of his long experience in the police he believed the statements made by Kirk to have been true. He accepted that Kirk's statement was not in chronological order. He stated that in his opinion Kirk, in speaking to him, was anxious to put his past behind him and to tell the police everything because he was "at the end of his tether" and was scared and worried about his family in the light of the alleged shooting incident at his home on the evening of 17 October 1993. Detective Sergeant Black accepted that Thompson was a registered drug addict, in addition to being a well known criminal, but that he nevertheless believed the statement by him on 20 October 1993 to have been true.

With reference to the affidavit sworn by him on 18 September 1997 in an interlocutory application, which did not proceed, Detective Sergeant Black accepts that the averments contained in paragraphs 4 and 6 thereof are not correct. With regard to his instructions to Constable Cox to arrest Porter under Section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989, Detective Sergeant Black stated that he specified the alleged shooting incident at Kirk's house on 17 October 1993; he said that he may have stated "among other things", although he did not specifically mention the three different charges involving possession of a revolver and threats to kill Kirk and Thompson. With reference to the brief to counsel for the bail court on 25 October 1993, Detective Sergeant Black stated that he honestly believed that Porter was an active member of a Red Hand Commando Unit and denied the suggestion put to him by Mr Horner that he had invented that allegation so as to ensure that Porter was kept in custody. He also denied the suggestion that he had invented the threats allegedly made to Kirk and Thompson to persuade them to withdraw the statements which they had made to the police.

Constable Cox gave evidence of having arrested the plaintiff at 22 Glenburn Road, Glen Estate, Newtownards on 18 October 1993 under Section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 in connection with the alleged shooting at 119 Blenheim Drive, Newtownards on the evening of 17 October 1993; he did so in the light of information given to him by Detective Sergeant Black, which information he believed.

Constable Catterson gave evidence of having on 17 October 1993 gone to the scene of the alleged shooting at Kirk's house and that he there saw Kirk, his spouse and children. He stated that he found two bullet holes in the rear kitchen window and strike marks on the wall in the kitchen and a bullet hole in the ceiling. He stated that the scene was one of pandemonium and that he did not take any statements at that time. On 18 October 1993 he returned to Kirk's house where he took a statement from Mrs Kirk and also carried out house to house enquiries and later took part in a search of the plaintiff's house at Dundonald. He was later present at the plaintiff's house when he was arrested that evening. On 19 October 1993 he went to Gough Barracks in Armagh where he interviewed the plaintiff solely concerning the alleged shooting incident on the evening of 17 October 1993. On the following afternoon, 20 October 1993, while still at Gough Barracks where the plaintiff was still in custody, he received a telephone call from Detective Sergeant Black informing him of the allegations of threats to kill Kirk and Thompson and that the plaintiff was to be arrested on the three different charges. He went to Room 6 in the custody suite where, according to his evidence, the plaintiff was awaiting transport home. He there re-arrested the plaintiff under PACE as he believed the information given to him over the phone by Detective Sergeant Black. Constable Catterson then stood outside Room 6 having informed the custody sergeant that the plaintiff was now under his charge, in whose charge he remained until other police removed him by car to Newtownards. He stated that once he had been given the information by Detective Sergeant Black over the telephone to re-arrest the plaintiff, he would not have allowed the plaintiff to leave Gough Barracks regardless of what the custody sergeant said. He stated that prior to the plaintiff being charged on 21 October 1993 on the charges of possession of the revolver and alleged threats to kill Kirk and Thompson, the plaintiff had informed him that he intended going to Scotland with his girlfriend if he got released, which he, Constable Catterson, understood to mean in the event of his being granted bail. It would appear to me that this was a genuine misunderstanding on the part of Constable Catterson, as it is most unlikely that the plaintiff would have informed him that he intended to skip bail if granted to him. Constable Catterson stated that he recommended that the three different charges, in addition to the charge concerning the theft of radiators at Comber, should be proceeded with against the plaintiff; he stated that he had no personal animosity towards him. He denied the allegation made by the plaintiff in the course of his evidence that he (Constable Catterson) was not sure at first why the plaintiff was being re-arrested at Gough Barracks in Armagh.

While Detective Chief Inspector Caskey had been involved in the detention of the plaintiff at Gough Barracks in relation to the investigation into the plaintiff's alleged involvement in the shooting incident on the evening of 17 October 1993, he stated that he was not a party to the decision subsequently made to arrest the plaintiff on 20 October 1993 in connection with the alleged possession of a revolver and threats to kill Kirk and Thompson. The file in relation to the latter charges did subsequently however come before him in addition to the charges relating to the burglary and theft of radiators at Comber. Like Detective Constable Catterson, he recommended that the charges should proceed and that the matter should be considered by the DPP as he felt that Thompson had withdrawn his statement under pressure. He accepted that, while he did not know Kirk personally, Kirk was probably not the most reliable witness. He stated that the file then went to his sub-divisional commander who likewise recommended that the charges should proceed.

Sergeant McMahon, who was the custody sergeant at Gough Barracks in Armagh on 18-20 October 1993 produced the custody records indicating that on 20 October 1993 at 1534 the plaintiff was released at Gough Barracks, Armagh in relation to the charge upon which he had been held up until then, namely the shooting at Kirk's house on the evening of 17 October 1993, but that shortly thereafter, at 1555, he was re-arrested by Constable Catterson on the three different charges. He stated that at 1534 he had gone to the cell where the plaintiff was being held and told him that he was being released, as there was no charges against him and that he was free to walk out. Although he had no clear recollection of what exactly occurred between 1534 and 1555, he thinks that he would have asked the plaintiff about what arrangements, if any, he had about getting home and that possibly police transport might be arranged for him. He stated that the plaintiff was transferred from his cell to an interview room to wait for transport home. The first he knew about the plaintiff's re-arrest at 3.55pm by Constable Catterson was after that had taken place. He stated that if he had been told that the plaintiff was to be re-arrested, he would not have held him in custody as he was free to go as far as he was concerned.

Detective Constable Buchanan gave evidence, inter alia, concerning the decision to release the plaintiff at Gough Barracks on 20 October 1993. He stated that that decision was taken by him at 3.30 and was put into effect at 3.34. He stated that he did not authorise the release of the plaintiff prior to that time as enquiries were still ongoing, although he was aware that the plaintiff was maintaining that he was elsewhere on the evening of 17 October 1993 when the alleged shooting incident took place in Kirk's house.

The plaintiff in the course of his evidence at the outset of the trial of this action denied that he ever had a revolver or that he had ever threatened William Kirk or Robert Thompson in any way. He stated that a friend of his, Thomas Casson did use a shotgun/air gun in the field behind his house. He denied that he had ever fired a gun at Kirk's house at Blenheim Drive in Newtownards. He stated that prior to 18 October 1993 he had been away in Blackpool for 6 months. He stated that following his arrest and removal in custody to Gough Barracks in Armagh on 18 October 1993 he was interviewed on a number of occasions on 19 and 20 October 1993 concerning the alleged shooting incident at Kirk's house on the evening of 17 October 1993. He was not asked any questions about his alleged possession of a revolver and his alleged threats to kill Kirk and Thompson some 9 months earlier. He alleged that, when he was told at Gough Barracks on 20 October 1993 that he was being released, the police would not let him leave the barracks and that he was unlawfully detained there until the arrival of the police from Newtownards a short time later, who then arrested him in connection with the three different charges of alleged possession of a revolver and threats to kill Kirk and Thompson some 9 months earlier. On his arrival at Newtownards Police Station he was questioned concerning those matters and the alleged theft of some radiators. Porter denied the allegations and said they were "a load of rubbish". When on 21 October 1993 he was shown a steel coal bunker and oil drum which had been taken from his house and which had holes therein, he told the police that they had been made by him and Casson with a legally held shotgun or air rifle owned by Casson. On 21 October 1993 he was charged with the three alleged offences concerning possession of the revolver and threats to kill Kirk and Thompson and was remanded in custody. He stated that when he applied for bail to the High Court on 25 October 1993 the police opposed bail, stating that he wouldn't appear for his trial and that he was believed by the police to be a member of a Red Hand Commando Unit.

In his evidence to this court the plaintiff denied that he had ever been a member of any such unit or that he had ever had any paramilitary involvement in anything. He said that he had told the police that he would go to Scotland to get away from them, as he considered that he was being hassled by the police, but he denied that there was any question of his not turning up for his trial. He maintained that the three charges relating to his alleged possession of a revolver and threats to kill Kirk and Thompson were malicious and that the police knew that there was no substance therein. With reference to his allegation that he had been wrongfully overheld at Gough Barracks on 20 October 1993 between his release at 3.34pm and his re-arrest on the three different charges at 3.55pm, the plaintiff stated that he had not been allowed to leave the barracks and that Constable Catterson had made reference to instructions that he be re-arrested on some offence involving grievous bodily harm but that Constable Catterson was not sure of the details and that he would "have to check with his boss". The plaintiff was unable to say whether or not there had been some discussion with him about the police giving him a lift home from Armagh. Apart from the three charges relating to alleged possession of a revolver and threats to kill Kirk and Thompson, the plaintiff accepted that on his return from Gough Barracks to Newtownards Police Station on 21 October 1993 he had been arrested on a charge of burglary involving the theft of radiators at Comber on 22 September 1993 and that he subsequently pleaded "guilty" to handling and receiving those radiators in respect of which he received a 6 months sentence of imprisonment suspended for two years.

The plaintiff was cross-examined about a .45 revolver which had been stolen in 1988 and which had subsequently been found in his house in November 1997; the plaintiff stated that when this gun was found in his house he was in fact in custody and that it had been found by his son at the side of the road and that it was in fact an antique; it is accepted that while the plaintiff was arrested with regard to that possession, no prosecution will in fact take place as it is agreed that the gun did not function.

Section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1989 provides that a constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which the section applies. The Section is in identical terms to Section 12(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1984, which was considered in the House of Lords in O'Hara v Chief Constable of the Royal Ulster Constabulary [1977] 1 All ER 129, Lord Styn stating at page 143G:

"Certain general propositions about the powers of constables under a Section such as Section 12(1) can now be summarised.

 

(1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough (see Shaabin Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626 at 1631, [1970] AC 942 at 949).

 

(2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers (see Hussein's case).

 

(3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest.

 

(4) The executive discretion to arrest or not as Lord Diplock described it in Holgate-Mohammed v Duke [1984] 1 All ER 1054 at 1059, [1984] AC 437 at 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.

 

Given the independent responsibility and accountability of a constable under a provision such as Section 12(1) of the 1984 Act, it seems to follow that the mere fact that an arresting officer has been instructed by his superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of Section 12(1) ---. In practice it follows that a constable must be given some basis for a request to arrest somebody under a provision such as Section 12(1), eg a report from an informer."

 

I am satisfied on the evidence in this case that Constable Cox, in the light of the briefing given to him by Detective Sergeant Black, did have reasonable grounds for his suspicion that the plaintiff was a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism to which the Section applied and I am satisfied that the arrest carried out by him was a lawful arrest.

I am also satisfied that the plaintiff, having been lawfully arrested by Constable Cox, was lawfully detained thereafter during his removal to and detention at Gough Barracks in Armagh up until 1534 hours on 20 October 1993. In Bradley & McDade v Chief Constable of the Royal Ulster Constabulary [1997] NIJB 254, Carswell LCJ delivering the judgment of the Court of Appeal, stated at page 258:

"Justification for Continued Detention

 

The arrest and detention of one person by another is a trespass unless it is justified, the onus being on the detainer to establish that justification. If an arrest is lawfully made, whether under the emergency legislation or under the general powers conferred on the police in the Criminal Evidence (Northern Ireland) Order 1989, then the arrested person may be held for a period for the purpose which was described by Lord Diplock in Holgate-Mohammed v Duke [1984] AC 437, 445, as being to -

 

 

 

`dispel or confirm the reasonable suspicion by questioning the suspect or seeking further evidence with his assistance.'

 

The justification which must be shown by the detainer for the subject's continued detention has been described in a number of authorities. In Dallison v Caffrey [1965] 1 QB 348, 370-1, Diplock LJ said:

 

`Since arrest involves trespass to the person and any trespass to the person is tortious, the onus lies on the arrestor to justify the trespass by establishing reasonable and probable cause for the arrest. The trespass by the arrestor continues so long as he retains custody of the arrested person, and he must justify the continuance of his custody by showing that it was reasonable.'

 

In Wiltshire v Barrett [1966] 1 QB 312, 325, Lord Denning MR expressed the obligation on the detainer in the following terms:

 

`Since that time [1816] it has been settled law that if, after arrest, a man is found on enquiry to be innocent, or at any rate that there is no sufficient case for detaining him, he should at once be set free.'

 

Lord Diplock also dealt with this point in Holgate-Mohammed v Duke [1984] AC 437. After stating that when sufficient prima facie proof of the suspect's guilt has been obtained, it is the duty of the police to charge him and bring him before the court, he went on at page 443:

 

`The other side of the same coin is where the investigation, although diligently pursued, fails to produce prima facie proof which, as Lord Devlin in Hussein v Chong Fook Kam [1970] 942 pointed out (at page 949), must be in the form of evidence that would be admissible in a court of law. When the police have reached the conclusion that prima facie proof of the arrested person's guilt is unlikely to be discovered by further enquiries of him or in other potential witnesses, it is their duty to release him from custody unconditionally: Wiltshire v Barrett [1966] 1 QB 312.'

 

In Petticrew v Chief Constable of the RUC [1988] NI 192, 203 O'Donnell LJ observed in this court:

 

`Reasonableness is the test to measure the conduct of the police viz a viz an arrested person throughout his detention while he is detained in custody.'

 

Mr Weatherup QC for the Chief Constable placed some emphasis upon the words `in right of the arrest' which appears in Sections 12 and 14 but we consider that in this respect there is no valid distinction between an arrest under the emergency legislation and an arrest under PACE, the view expressed by Hutton LCJ in this court in Oscar v Chief Constable of the Royal Ulster Constabulary [1992] NI 209, 309.

 

When a suspect has been lawfully arrested, accordingly, the police may hold him for a period (subject to the maxima laid down by law) while they seek evidence by questioning him and seeking it from other sources which tends to confirm or dispel the suspicion of his guilty held at the time of his arrest. If after a time a decision is made to release him, then he must be released without delay. Until that point is reached, the detention is justified, so long as the police are acting reasonably in continuing to pursue enquiries about his guilt. If it appears that at some stage they no longer have any reasonable foundation for so continuing, at that stage the justification for the detention ceases to exist."

 

I hold that the detention of the plaintiff following his initial arrest on 18 October 1993 up until 1534 on 20 October 1993 was reasonable in the circumstances of this case.

I hold that the re-arrest of the plaintiff under PACE by Constable Catterson at Gough Barracks on 20 October 1993 at 1555 was a lawful arrest as he believed the information given to him by Detective Sergeant Black with regard thereto which were reasonable grounds for the arrest. I further hold that the plaintiff's subsequent detention for questioning concerning the three different charges was reasonable up until he was taken before Newtownards Magistrates' Court on 21 October 1993 when he was remanded in custody.

I hold however that the plaintiff was not free to leave Gough Barracks at 1534 on 20 October 1993 and that he was wrongfully detained there until his re-arrest a short time later at 1555 and that he is entitled to damages for that short period of wrongful detention.

I now turn to the plaintiff's claim for malicious prosecution which it is alleged was inspired by Detective Sergeant Black. A malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge. Unlike the other aspects of this claim, where the burden of proof rests upon the defendant to justify the arrest and subsequent detention, the burden of proof in a claim for malicious prosecution rests upon the plaintiff. To be actionable as a tort the process of setting the law in motion on a criminal charge must have been without reasonable and probable cause, must have been instituted or carried on maliciously and must have terminated in the plaintiff's favour. The plaintiff must also prove damage: see Halsbury's Laws of England, 4th Edition, Volume 45 at paragraph 1340. Despite rigorous and searching cross-examination by Mr Horner QC, I found Detective Sergeant Black to be an honest witness, whose evidence I accept. He readily admitted in evidence that he would have "loved to have seen the plaintiff locked up", having regard to what he knew or had been told about him; it does not follow from that that he was motivated by malice. I am satisfied on the evidence that the prosecution of the plaintiff on the three different charges was made with reasonable and probable cause and that it was instituted and carried on quite properly and without any malice on the part of Detective Sergeant Black, or anybody else involved in the prosecution process, up until the moment when the charges against the plaintiff were withdrawn at the Magistrates' Court on 27 July 1994. With regard to the withdrawal by Thompson of the statement made by him to the police, I accept Detective Sergeant Black's evidence that he believed, and still believes, that Thompson withdrew his statement under threat; anybody living in this jurisdiction and involved in the law knows that this unfortunately is a frequent occurrence.

The trial of this action took place over a period of five days between 11 and 17 November 1998. While Mr McCollum made closing submissions on behalf of the plaintiff on 17 November 1998, he indicated at the time that these oral submissions would be followed by written submissions by Mr Horner QC, who led him for the plaintiff. In those written submissions some days later, Mr Horner QC sought leave to amend the statement of claim to plead misfeasance in public office on the part of Detective Sergeant Black. This question was touched on briefly in the course of the trial but was not pursued and no application was made at the time to amend the statement of claim. Mr Weatherup QC, who appeared with Mr McCloskey for the defendants, opposes that amendment being made at this late stage. I do not consider that it would be right to allow such an amendment now that the evidence in the action has been completed. I might add that, even if I had allowed such an amendment, I do not consider that a case of misfeasance in public office has been established by the plaintiff in this case.

Accordingly the plaintiff's claims are dismissed except for his claim for wrongful detention between 1534 and 1555 on 20 October 1993 in respect of which, in accordance with the decision in Dodds v Chief Constable of the Royal Ulster Constabulary [1998] NI393, I award the plaintiff 400. The claim is not one which warrants the award of aggravated or exemplary damages. I award interest on the 400 at the rate of 2% per annum from the date of the service of the writ of summons until the date of trial.


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

 

QUEEN'S BENCH DIVISION

 

 

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BETWEEN:

 

ADRIAN PORTER

 

Plaintiff;

 

 

and

 

THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

 

Defendant.

 

 

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JUDGMENT

 

 

 

OF

 

 

 

SHEIL J

 

 

 

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