CONSTABLE v. CIVILIAN

Dominion, Volume 1, Issue 122, 15 February 1908, Page 6

CONSTABLE v. CIVILIAN

POWERS OF ARREST,

Sitting- in '-Banco yesterday, Mr. .Justice Cooper licard, further-argument .in the-case, •Turner v. Patterson, an appeal .from the decision of Mr. W. G. Riddell, S.M. ' • Tho appellant, in.' this- case is a. constable, 'who was : sued- iir the lower Court by;'-Pat-, terson for wrongful arrest. Argument in ■'the appeal case was heard recently,; but .since,..then .further facts regarding s tho arrest' wero obtpined' : from the: Magistrate.; Mr. Herdman appeared for Turner, and Mr. Skcrrett,, K. 0.. (with' him Mr..- Fitsgibbon)', for -.Patterson. i

: . Mr. Herdinan said. that tho Magistrate had found there was nothing to shoyrj that.Pat- . tei;son; was about' to create a breach of tho peaco, .but lie foiind that he-had .an iinten-.' tion to provoke a breach, and, having :found that, then he (counsel).. submitted tfiat'-if,' by his words ; and conduct, Patterson had v shown this intention, then the constable was . justified in suspecting that, a broach of the/.', pfeace was about to be occasioned., Reviewing the findings of tho Magistrate and .the . whole of. tho circumstances,. there was-ample >evidonee to justify this suspicion, and counsel submitted it lay with the other,side,to show that tho arrest -'was illegal!':. If . it' were not ' so, a constablo was.in tho position of being' charged with assault if he arrested;a man.. It , would bo absurd if tho onus of proving, the legality of an arrest, was thrown .upon the constablo. Ho referred,to,&ection.-39 of the Police Offences' Act,, and said that .tho - object of this provision; was, no doubt, to • give, a police constable power•• if a, .disturbance occurred in -the street to" ; interferedbefore such disturbance bccame. a breach of !tho peace. Ho submitted that the action.of Patterson justified the'constablo, in. considering ■. ho was intending to provoko a breach of ■ tlio ■' peact!. : ...i'-'-. .i" '. —. - f:v'. , In giving judgment, His Honour' said :-r- • "On tho facts.' and circumstances of this case I am clearly of, opinion that the,, ap- '. pellant was not justified: in arresting, the respondent, without "warrant.: As';to the law on tho matter, there is no dispute.- Section 35 of the Police Offences' Act, 1884, provides that'; Any constable; and,all persons whom. V ho shall call to his assist-aiico, piay take into . ' custody, without a -warrant, (any person who," within view; of\,-any'.such'-.constable,•■■shall'; ,offend in any manner "against this'ActJ and-' whoso name, and residencd; shall ,be unknown to such constable and cannot 'bo "ascertained , by him; all loose, idle; and. disorderly, persons whom ho shall find disturbing the pub- . lie'peace; or any person whom, he shali;Kayo. - good cause to' suspect of 1; having, committed,, , or being about to commit, any felony', mis-:: demeanour; or breach of tho peaco.' ; - l "Tho, wholo iijuestion, therefore; ;is • duced to a'question of tho circum-stances-disclosed in the evidence in this ciaso show that-the constable, when he arrested . the' respondent,' had; good cause. to suspect- : that he was about.to commit a breach of the, pcace?—for, as he knew his name and residence, the firßt branch of Scction'3s does not' ; apply.; The'moro of "insulting languagedoes not:constituto;a constructive breach of , the peace, unless uttered in.' such i a.-placa and m such a manner as to. attract a crowdof J)ersons and interfere with ■ the public convenience and tend to arouse: ahd .inflamo the: ipassions'- of the 'crowd. : There was .no evidence that : the iespojident .was/obstructing; ~ the footpatl^',boyona.Vthe:;fact;-:that''. he Was, ... loitering there. ; V ' ; -.v % ' ." The , case reduces itself simply to'this. The, respondent used ; unjustifiable l language, to, the constable, but did;not 'obstruct him," nor, is. it'; suggested.; that,;he, pbstriicted ..him., .in tho execution; of ■ his duty. : The Outmost: that can be said: was: that the language usee ;may have' been' calculated: to- OTOVoke : re-, prisals on the' constable's,part.' That is not J>. sufficient to justify-' arrest.; There; must ,bo something, to make the : constable reasonably • ri bellevo that tlio person using the insulting ' language is about to commit 4 breach of the peace ; for example, a challenge to fight,' or a threat of personal violence would be suffi-' :cient. The Court has to be careful 1 to see ' that the authority given to tho police in the. 'interest of; the public and- for .the maint-en- : anco of, public order : is; maintained,: but has .; also,'to be careful .to see 'that .the' liberty of tho subject shall not bo interfered-with : by; . an'; arrest without warrant unless - there-is clear legal 'authority, for such an arrest. The constable in this case had, in my .opinion, ! no' legal grounds-upon which-ho was:aiitho-' • rised to arrest .the'- respondent . without' .war- . rant, and,'' tho,-arrfest ■; being " therefore: un- . justifiable, >lie was rightly, convicted -of an 'assault. -' •'■.' : ' r : :

"It is unnecessary to'refer to Section 39 •of tho'Act, : cited, b.y Mrl Herdman, beyond saying-' this, tliafc'there'; is nothing :in that ;section' : which gives any'authority a .constable to arrest -without warrant;whero : 'such authority is not given either bv- the common law or.' by the provisions of the Act-itself. I agree with the Magistrate that-the. conduct of tile respondent was! unjustifiable,.-but I also agree that tho constable had to, arrost him' without a warrant'.-,' I theroforo,dismiss the- appeal, but,' under -the' circumstances,- without costs/ v . I' might- mention that I'have no sympathy with'the'respondent, who brought tho whole troublo on: himself." ■' .'• •' •