McKee v Chief Constable for Northern Ireland  1 WLR 1358;  1 All ER 1
LORD ROSKILL: My Lords, early in the morning of 8 September 1981 Pc Graham of the Royal Ulster Constabulary was sent with another police officer and a soldier to the respondent's home in Theodore Street in Belfast. Pc Graham's instructions, given earlier that night by his superior officer, Sgt Jackson, were to arrest the respondent as a 'suspected terrorist'. Pc Graham's evidence, which the trial judge, MacDermott J, accepted in preference to that of the respondent, was that Sgt Jackson had told him that the respondent 'was a suspect terrorist and from what he told me about that person I was firmly convinced that this was correct'. Pc Graham also said that when he arrested the respondent he told him:
'I am arresting you under s 11 of the Emergency Powers Act 1978 and am taking you to Castlereagh. Just then he said, "What for?" I told him it was as a suspect terrorist.'
The respondent having been so arrested was detained and questioned. At about 10.00 pm on the same day he was released, having been in custody for some 18 hours. The respondent then sued the appellant as the police authority responsible for the actions of Pc Graham and others for damages for trespass, assault and unlawful arrest and imprisonment. The appellant by way of defence relied on s 11 of the Northern Ireland (Emergency Provisions) Act 1978. Section 11(1) of that statute reads: 'Any constable may arrest without warrant any person whom he suspects of being a terrorist.'
Section 31(1) defines 'terrorism' and 'terrorist' in the following terms:
''"terrorism" means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear; "terrorist" means a person who is or has been concerned in the commission or attempted commission of any act of terrorism or in directing, organising or training persons for the purpose of terrorism.'
MacDermott J dismissed the respondent's action. Two findings of the judge's judgment are crucial. First:
'I am satisfied ... that the officer when he went to Theodore Street was convinced in his own mind that the [respondent] was suspected of being a terrorist and that he himself suspected him of being a terrorist.'
'... I accept that Pc Graham genuinely suspected that the [respondent] was a terrorist. As can be seen from the definition, "terrorist" and "terrorism" are defined in wide terms. In my judgment the arresting constable does not have to know or even suspect the nature of the involvement in terrorism which his superior attributes to the person who is being arrested.'
It was for this reason that the trial judge held that the respondent's arrest was lawful and dismissed the action.
The respondent appealed to the Court of Appeal in Northern Ireland (Jones, O'Donnell LJJ and Kelly J). The Court of Appeal on 5 December 1983 by a majority, Jones LJ dissenting, allowed the appeal, held the arrest unlawful and awarded the respondent £500 damages against the appellant. By the same majority leave to appeal to this House was refused but subsequently your Lordships granted leave to appeal. The reasoning of Jones LJ was in substance that of the trial judge. But the majority in the judgment given by Kelly J thought otherwise. After stating that the statute 'required a suspicion of being a terrorist in narrower terms than popular usage of the word "terrorist" might connote to a police officer or a layman', the judge went on to say:
'Neither limb brings into its definition the person for example who is merely a member of a proscribed or paramilitary organisation, nor one whose activity is no more than soliciting support for such an organisation. So, if a police officer suspects a person of membership of a proscribed organisation and nothing more, he has no lawful power of arrest under s 11(1) of the 1978 Act because such membership does not make him a terrorist under the Act.'
Later in his judgment, the judge asked:
'Was there evidence before the trial judge to enable a finding to be made that Pc Graham suspected the appellant of being a terrorist within the definition of s 31?'
He concluded that there was not, because of the later questioning of the respondent by Det Con Moody after the respondent's arrest with a view to establishing that the respondent was a member of the Provisional IRA. I quote the judge's words:
'Therefore the [respondent's] deepest involvement in terrorism as suspected by the interviewing detectives and their file was membership of the Provisional IRA. I would find it surprising if Sgt Jackson, a uniformed section sergeant, knew or suspected more. It is possible that he did but he was not called to give evidence. If he did not, then the most he could communicate to Pc Graham was that the [respondent] was a suspected member of the Provisional IRA. If the officer accepted this and this was his suspicion, then that suspicion fell short of that required by s 11(1) and s 31 of the Act.'
My Lords, with profound respect to the majority of the Court of Appeal, I cannot agree. Nor do I agree that the two definitions in s 31 are narrow. On the contrary, in common with the trial judge, I think they are wide. There was never any suggestion throughout Pc Graham's evidence that the reason for his being of the firm opinion that the respondent was a suspect terrorist was that he was or was believed to be a member of the Provisional IRA. Indeed, that organisation is nowhere mentioned from beginning to end of Pc Graham's evidence. 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. It is, in my view, not legitimate in the light of the trial judge's findings as to Pc Graham's state of mind at the time of the arrest to seek to go behind that finding and deduce from Det Con Moody's evidence as to questioning which took place some time after the arrest what Sgt Jackson's state of mind may have been when he gave Pc Graham his instructions. It is Pc Graham's state of mind that matters and that alone. In my view the matter is concluded in favour of the appellant by the trial judge's findings to which I have already referred.
My Lords, I do not doubt that the burden is on the appellant to justify the respondent's arrest. In my view he has amply done so. I have already said that I reached this conclusion simply on the trial judge's findings as to Pc Graham's state of mind. That Pc Graham honestly had that belief was not challenged and, if it be relevant, the existence of that honest belief seems to me to be well established by the fact that Pc Graham said in evidence that Sgt Jackson had told him to be careful and that after knocking on the door of the respondent's house he, Pc Graham, was 'standing back against the wall because I suspected he [the respondent] might have guns'.
In conclusion I would mention two other matters. First, I respectfully agree with all the judges below that on the true construction of the statute the powers of arrest under s 11 are not qualified by any words of 'reasonableness'. The suspicion has to be honestly held but it need not be a reasonable suspicion as well. I also agree with what was said on this topic by McGonigal J in Re McElduff  NI 1 at 19, in the passage quoted by Kelly J.
Second, the respondent in his printed case claimed that it was conceded below 'that mere membership of the Provisional IRA does not necessarily amount to being a "terrorist" as defined'.
Counsel who conducted the appellant's case in the Court of Appeal said that neither he nor his junior had any recollection of making any such concession. In these circumstances, counsel for the respondent properly felt unable to press the point. I will only say that, if any such concession had been made, I find it difficult to understand how O'Donnell LJ, on the application for leave to appeal to this House, would have said that the question was 'a hypothetical one since no evidence was given to raise its factual basis'.
For my part, I decline to express any view whatever on the question whether suspicion of membership of the Provisional IRA would without more justify arrest under s 11(1). There is no evidence to suggest that suspicion of such membership was a factor in any way operating on Pc Graham's mind at the time he effected the arrest.
In the result I would allow this appeal and restore the order of MacDermott J dismissing this action.