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50 Cards in this Set
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Powers of detention
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Section 4, Criminal Justice Act, 1984 (arrestable offences)
Section 30, Offences Against the State Act 1939 (as amended by Offences Against the State Amendment Act 1998) (subversive / scheduled) Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 Section 50 of the Criminal Justice Act 2007 ("gangland" violence) Section 42 of the Criminal Justice Act 1999 (persons already in custody in relation to unrelated offences) |
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Persons under 18
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Note that this section does not address the detention of persons under 18: the Children Act 2001 contains detailed provisions regarding the detention of such persons and reference should be made to that Act in any case where a suspect is under the age of 18.
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Section 4, Criminal Justice Act, 1984
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Power of detention at a Garda Station in relation to persons arrested for arrestable offences i.e. offences which are punishable by 5 years imprisonment or more and attempts to commit such offences.
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Maximum periods of detention permitted pursuant to Section 4, Criminal Justice Act, 1984
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The detention periods provided for under this section for arrestable offences are:
i) 6 hours from time of arrest ii) A further 6 hours where directed by an officer not below the rank of Superintendent iii) A further 12 hours (additional to those at (ii) above) where directed by an officer not below the rank of Chief Superintendent A direction under (ii) or (iii) above may be given orally or in writing but where it is given orally it must be recorded in writing as soon as is practicable). |
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When does the clock stop in relation to a detention pursuant to Section 4, Criminal Justice Act, 1984?
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a) If the member in charge (MIC) authorises suspension of questioning fora specified period between midnight and 8am to allow the detainee to
rest (this can only be done with the written consent of the detainee), then that rest period will be excluded when reckoning the period of detention. (Section 4(6)(a)) - note that this only applies where questioning is suspended pursuant to this section. b) If the detainee is in need of medical attention and is taken to hospital the period that the detainee is absent from the station will be excluded when reckoning the period of detention (Section 4(8)) c) Where the detainee is taken to a court in connection with an application relating to the lawfulness of his detention, the time during which he is absent from the station for that purpose will be excluded when reckoning the period of detention |
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Suspension of questioning in connection with "relevant offences" (white collar) under the Criminal Justice Act 2011
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Where the MIC suspends questioning (for up to four months at a time and on no more than two occasions) as a result of reasonable grounds for believing that the suspension is necessary for the purpose of permitting enquiries or investigations to be made for the further and proper investigation of the offence concerned
(Section 4(3A) - (3F), as inserted by Section 7 of the Criminal Justice Act 2011; see also Section 4A of the 1984 Act, as inserted by Section 8 of the 2011 Act). |
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Grounds on which detention under Section 4, Criminal Justice Act, 1984 is permitted
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Any detention under this section is only permissible if the relevant person:
• MIC in relation to 1.1.3(i) above (first 6 hours) • Superintendent in relation to 1.1.3(ii) above (further 6 hours) • Chief Superintendent in relation to 1.1.3(iii) above (further 12 hours additional to those above) has reasonable grounds for believing that such detention is necessary for the proper investigation of the offence. |
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Section 4, Criminal Justice Act, 1984: where there are no longer reasonable grounds for suspecting the person has committed an arrestable offence
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The suspect must be released immediately unless another power of detention can be invoked.
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Section 4, Criminal Justice Act, 1984: where there is sufficient evidence to charge
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Where there is enough evidence to charge a person detained under this section, they must be charged without delay ...
UNLESS there is reasonable cause to suspect them of having committed another offence to which the section applies and the member in charge of the station has reasonable grounds for believing that the continuance of his detention pursuant to the section is necessary for the proper investigation of that offence. |
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Section 30, Offences Against the State Act 1939 (as amended by Offences Against the State Amendment Act 1998)
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Power of detention for persons suspected of offences under the OATSA or scheduled (subversive) offences thereunder.
May be detained at a Garda Station, Prison or "some other convenient place". |
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Detention periods pursuant to Section 30, Offences Against the State Act 1939 (as amended)
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The maximum detention periods provided for under section 30 are:
a) 24 hours from time of arrest b) A further 24 hours where directed by an officer not below the rank of Chief Superintendent c) A further 24 hours (additional to those at (b) above) where authorised by a warrant obtained from a District Judge on application by an officer not below the rank of Superintendent |
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Application to a district judge for an warrant providing for detention between 48 and 72 hours pursuant to Section 30, Offences Against the State Act 1939 (as amended) by a Garda ranking not below Superintendent.
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An application for such a warrant may only be made if the officer applying for the warrant has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence.
The warrant may only be issued if the judge is satisfied that such further detention is necessary for the proper investigation of the offence concerned and that the investigation is being conducted diligently and expeditiously. At an application for such a warrant the detained person must be produced and the judge must hear any submissions made and consider any evidence adduced by or on behalf of the person and the officer of the Garda Siochana making the application. |
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Charge of a person detained pursuant to Section 30, Offences Against the State Act 1939 (as amended)
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A person detained under section 30 may at any time during such detention be charged before the District Court or a Special Criminal Court with an
offence. |
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Release of a person detained pursuant to Section 30, Offences Against the State Act 1939 (as amended)
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A person detained under section 30 may at any time be released by direction of an officer of the Garda Síochána
The person must must, if not charged or already released, be released at the expiry of the authorised detention period. |
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Powers of Gardaí in relation to persons detained under Section 30, Offences Against the State Act 1939 (as amended)
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A member of the Garda Síochána may do all or any of the following things in respect of a person detained under this section:
( a ) demand of such person his name and address; ( b ) search such person or cause him to be searched; (c) photograph such person or cause him to be photographed; ( d ) take, or cause to be taken, the fingerprints of such person. |
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Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
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Provides for detention of persons under investigation for a "drug trafficking offence" at a Garda or, if the arrested person is suspected of concealing a controlled drug about their person, "a place of detention".
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"Drug trafficking offence"
Section 3(1) of the Criminal Justice Act 1994 |
"drug trafficking offence" means any of the following-
(a) an offence under any regulations made under section 5 of the Misuse of Drugs Act, 1977, involving the manufacture, production, preparation, importation, exportation, supply, offering to supply, distribution or transportation of a controlled drug, ( b ) an offence under section 15 of that Act of possession of a controlled drug for unlawful sale or supply, Other offences: assisting in the commission of an arrestable offence outside the state, relevant customs offences money laundering, aiding/abetting/procuring the above. |
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Maximum periods of detention permitted pursuant to Section 2 of the Criminal Justice (Drug Trafficking) Act 1996
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The detention periods provided for under this section for such offences are:
a) 6 hours from time of arrest b) A further 18 hours where directed by an officer not below the rank of Superintendent c) A further 24 hours (in addition to (b) above where directed by an officer not below the rank of Chief Superintendent d) A further 72 hours (additional to those at (c) above) where authorised by a warrant obtained from a District Judge or Circuit Court Judge on application by an officer not below the rank of Chief Superintendent e) A further 48 hours (additional to those at (d) above) where authorised by a warrant obtained from a District Judge or Circuit Court Judge on application by an officer not below the rank of Chief Superintendent. |
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Application to a district judge for a warrant extending detention beyond 6 hours pursuant to Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 by a Garda ranking not below Chief Superintendent.
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Note that if a warrant is applied for under (d) or (e) above then so long as the
preceding detention period has not expired at the commencement of the hearing, even if it would have expired during the hearing it will be deemed not to have expired until the determination of the hearing. A direction under (b) or (c) above may be given orally or in writing but where it is given orally it must be recorded in writing as soon as is practicable and th is record must include the fact the direction was given, the date and time it was given and the name and rank of the officer who gave it and this record must be attached to the custody record. |
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Section 50 of the Criminal Justice Act 2007
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The section provides a power of detention for person arrested by Gardaí, without warrant, for one of the following offences:
a) murder involving the use of a firearm or an explosive; b) murder to which section 3 of the Criminal Justice Act 1990 applies [capital murder]; c) an offence under section 15 of the Firearms Act 1925 (as substituted by section 42 of the Criminal Justice Act 2006) (possession of firearms or ammunition with intent to endanger life or cause serious injury to property]; d) an offence under section 15 of the Non-Fatal Offences against the Person Act 1997 involving the use of a firearm; or e) an offence under Part 7 of the Criminal Justice Act 2006. May be detained at a Garda station. |
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Maximum periods of detention permitted pursuant to Section 50 of the Criminal Justice Act 2007
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The detention periods provided for under this section for such offences are:
a) 6 hours from time of arrest b) A further 18 hours where directed by an officer not below the rank of Superintendent c) A further 24 hours (in addition to (b) above where directed by an officer not below the rank of Chief Superintendent) d) A further 72 hours (additional to those at (c) above) where authorised by a warrant obtained from a District Judge or Circuit Court Judge on application by an officer not below the rank of Chief Superintendent e) A further 48 hours (additional to those at (d) above) where authorised by a warrant obtained from a District Judge or Circuit Court Judge on application by an officer not below the rank of Chief Superintendent |
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Application to a district judge for a warrant extending detention beyond 6 hours pursuant to Section 50 of the Criminal Justice Act 2007 by a Garda ranking not below Chief Superintendent.
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Note that if a warrant is applied for under (d) or (e) above then so long as the preceding detention period has not expired at the commencement of the
hearing, even if it would have expired during the hearing it will be deemed not to have expired until the determination of the hearing. A direction under (b) or (c) above may be given orally or in writing but where it is given orally it must be recorded in writing as soon as is practicable and this record must include the fact the direction was given, the date and time it was given and the name and rank of the officer who gave it and this record must be attached to the custody record. |
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Section 42 of the Criminal Justice Act 1999
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Take note that this section provides Gardaí with a power to detain for questioning suspects in relation to a given offence who are already in custody in relation to unrelated matters.
The time limits applicable to detention under Section 4 of the Criminal Justice Act 1984 apply. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
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These regulations apply to all persons detained in Garda Stations under whatever legal power, not only those detained under the 1984 Act.
A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him (Criminal Justice Act 1984, s.7(3)). A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings. (Criminal Justice Act 1984, s7(4)) A copy of the regulations will be kept in each Garda station. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulation 3 |
(1) In carrying out their functions under these Regulations members shall act with due respect for the personal rights of persons in custody and their dignity as human persons, and shall have regard for the special needs of any of them who may be under a physical or mental disability, while complying with the obligation to prevent escapes from custody and continuing to act with diligence and determination in the investigation of crime and the protection and vindication of the personal rights of other persons.
(2) There shall be no unnecessary delay in dealing with persons in custody. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulations 4 and 5 Member in charge ("MIC") |
The regulations create the role of MIC and provide for a number of duties to be carried out by the MIC in relation to persons in custody including an overriding duty to oversee the application of the regulations to persons in custody. The member who is designated the MIC in any particular case is the member who is in charge of the station at the time these duties are to be carried out and as far as is practicable should not be the a member who was involved in the arrest of a person for the offence in respect of which he is in custody in the station or in the investigation of that offence (see Regulations 4 and 5).
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulations 6 and 12 Custody Record |
A "custody record" must be kept for each person in custody.
The MIC must ensure that all the required information is recorded in this record and each entry must be signed or initialled by the member making it. The overall responsibility for the accuracy and completeness of the custody record lies with the MIC (see Regulation 6.) Custody records must be kept for a period of: at least 12 months; or until the final determination of any proceedings in respect of which the record is relevant; or until the final determination of any complaint against a member while the person was in custody, whichever is the later. (Regulation 12) A copy of the record must be supplied as soon as is practicable if requested by the person who was in custody or his legal representative at any time between his leaving custody and 12 months thereafter. (Regulation 12) lt is good practice to keep a custody record even if the person is attending voluntarily and is not under arrest. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
On arrival at the Garda station |
The arresting officer will take the person in custody directly to the public office where the arresting officer will state clearly to the MIC:
• their name, rank and any identifying warrant number; • the name of the person in custody; • the fact that the person in custody is under arrest; • the reason for the arrest; • the time, date and place of arrest; • any information regarding the condition of the person in custody (for example, if they are drunk, injured or have medication needs); and • a request for detention of the person in custody to allow for the proper investigation of the offence (for example interview the person in custody or further enquiries). The MIC will record carefully all the information in a custody record and will consider the request for detention. If detention is granted, the MIC will say so and proceed accordingly. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
MIC must make a separate and independent inquiry |
lt is an essential requirement of a valid detention that the Member in Charge, separately and independently of the arresting member, considers the information available to him and on that basis reaches a conclusion that there are reasonable grounds for believing that the detention is necessary for the proper investigation of the offence in question.
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Information to be given to persons in custody |
The MIC must ensure that arrested persons are given the following information:
• The offence or other matter for which he or she has been arrested • That he or she is entitled to consult a solicitor • That he or she is entitled to have another person notified of his being in custody, or, if under 17 that his or her parent, guardian or spouse has been told of the reason for his or her arrest and requested to attend the station without delay.(Regulation 8) |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulation 10 Enquiries about the presence of a person in custody at a Garda Station |
Regulation 10 requires that, with the consent of the person in custody, information as to the station where the arrested person is in custody shall be
given in answer to any enquiry from a solicitor who has not been requested by the person in custody. Such information may also be given in response to an enquiry from any other person if the person in custody consents and if the MIC is satisfied that giving the information will not hinder or delay the investigation of crime. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulation 19 Conditions of custody 1-5 |
(1) A person shall be kept in custody only in a station which has facilities to enable him to be treated in accordance with these Regulations for the period during which he is expected to be in custody in that station.
(2) A person in custody shall be allowed such reasonable time for rest as is necessary. (3) A person in custody shall be provided with such meals as are necessary and, in any case, at least two light meals and one main meal in any twenty-four hour period. He may have meals supplied at his own expense where it is practicable for the member in charge to arrange this. ( 4) Access to toilet facilities shall be provided for a person in custody. (5) Where it is necessary to place persons in custody in cells, as far as practicable not more than one person shall be kept in each cell. Persons of the opposite sex shall not be placed in a cell together. A violent person shall not be placed in a cell with other persons if this can be avoided. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Regulation 19 Conditions of custody 6-8 |
(6) Where a person is kept in a cell, a member shall visit him at intervals of approximately half an hour. A drunken person or a person under the
influence of drugs shall be visited and spoken to and if necessary roused for this purpose at intervals of approximately a quarter of an hour for a period of two hours or longer if his condition warrants it. (7) A member shall be accompanied when visiting a person in custody of the opposite sex who is alone in a cell. (8) A person in custody under the age of seventeen years shall not be kept in a cell unless there is no other secure accommodation available and where practicable shall not be placed in a cell with an adult other than an adult relative. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Prohibition on use of force except reasonable force as is necessary in certain situations Regulation 20(1) and (2) |
(1) No member shall subject a person in custody to ill-treatment of any kind or the threat of ill-treatment (whether against the person himself, his
family or any other person connected with him) or permit any other person to do so. (2) No member shall use force against a person in custody except such reasonable force as is necessary- (a) in self-defence, (b) to secure compliance with lawful directions, (c) to prevent his escape, or (d) to restrain him from injuring himself or others, damaging property or destroying or interfering with evidence. The regulation also sets out detailed reporting requirements in the following situations: where a member uses force against and injures a person in custody, or where it comes to the attention of a member that another member has contravened the provisions of Regulation 20, or where a person in custody makes a complaint concerning the conduct of a member. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Medical Treatment of Persons in Custody Regulation 21 |
Where a person in custody:
(a) is injured, (b) is under the influence of intoxicating liquor or drugs and cannot be roused, (c) fails to respond normally to questions or conversation (otherwise than owing to the influence of intoxicating liquor alone), (d) appears to the member in charge to be suffering from a mental illness, or (e) otherwise appears to the member in charge to need medical attention, the MIC should summon a doctor or cause one to be summoned or ensure the removal of the person to hospital, whichever is appropriate. In addition medical advice should be sought in relation to persons who claim they need medication for or have in their possession medication for a heart condition, diabetes, epilepsy or other potentially serious condition. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Telephone calls and visits of friends and relatives and provision of writing materials |
Any telephone calls to friends and relatives or visits allowed by the MIC will be monitored. Where it is considered that continuance of a call or visits would
interfere with the investigation it may be terminated. The person in custody will be warned before the call or visit that anything said in the call or visit may be given in evidence. Any request for writing materials by the person in custody will be attended to and met. |
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Right of persons in detention to legal advice
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The Supreme Court decision in DPP v Healy established a detainee's right of access to a lawyer as a constitutional right.
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DPP v Healy [1990] ILRM 313
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Per Finlay CJ:
"I am driven to the conclusion that such an important and fundamental standard of fairness in the administration of justice as the right of access to a lawyer must be deemed to be constitutional in its origin, and that to classify it as merely legal would be to undermine its importance and the completeness of the protection of it which the courts are obliged to give." |
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Right of detainee under section 4 to legal advice under Section 5 of the Criminal Justice Act 1984
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This establishes a right of persons detained under section 4 of the Criminal Justice Act 1984 to be informed of the right of access to a solicitor and the
right to have the solicitor informed of a request to exercise the right of access. Note that section 9 of the Criminal Justice Act 2011 (at p.374 of the Criminal Legislation Manual) inserts new sections 5A and 5B into the Criminal Justice Act but that this section had not been commenced as of early March 2014. When commenced, section SA will strengthen a suspect's rights regarding access to legal advice, establishing a general proposition that questioning should not commence until the suspect has taken advice. |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Access to legal advice |
• An arrested person must have reasonable access to a solicitor of his choice and be able to communicate with him privately. (Reg 11(1))
• The MIC must inform the person in custody that they are entitled tolegal advice. (Reg 8) • Where an arrested person has asked for a solicitor the MIC must inform the solicitor as soon as practicable and if the solicitor cannot be contacted within a reasonable time or if the solicitor is unable or unwilling to attend the person must be given an opportunity to ask for another solicitor and the MIC should then inform the other solicitor as soon as is practicable. (Reg 9) • Where an arrested person asks for a solicitor, he shall not be asked to make a written statement in relation to an offence until a reasonable time for the attendance of the solicitor has elapsed. (Reg. 12 (6)) |
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Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987
Access to legal advice pt.2 |
• Where an arrested person has not had access to a solicitor and a solicitor who he or she has not requested arrives at the station and
• A consultation with a solicitor may take place within sight but out of hearing of a member. (Regulation 11 (3)) The solicitor may attend the garda station or the consultation may take place by telephone (but in either case it must take place out of hearing of a member). The length of consultation which should be allowed is suggested in the Garda Sfochana training notes to be 30 minutes. However, this has not been tested in the courts. Legal Aid can cover advice given in the Garda station. When the solicitor arrives they will ask the detainee to complete a means-tested application form to ensure they are eligible. A solicitor may be represented by a legal executive and granted the same facilities by the Garda as if he were a solicitor. |
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Parameters of the Right of access to legal advice.
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The right is one of reasonable access not an absolute right.
A MIC must make all reasonable and bona fide attempts to contact a solicitor but where there is a considerable delay in the arrival or securing of a solicitor, it will not necessarily breach the constitutional right of the accused (or the regulations) if questioning commences before the solicitor arrives. However, this practice is contrary to the jurisprudence of the ECHR and the decision in Averill v United Kingdom There is no provision for stopping the clock in relation to detention periods while a solicitor is being obtained. The right to access to legal advice does not extend to the right to have a solicitor present during interview. (Lavery v Member in Charge [1999] 2 IR 560) |
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Photographing of suspects
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Where a person has been detained under section 4 of the Criminal Justice Act 1984 the MIC may photograph him or her if the person consents thereto, or in the absence of such consent, authority has been given by a member not below the rank of Inspector.
A person who obstructs a member who is carrying out this power is guilty of an offence (Section 6 of the 1984 Act) An arresting Garda, on the authority of a sergeant or above, may photograph an arrested person or to cause them to be photographed at a Garda Station for the purpose of assisting in the identification of the person in connection with any proceedings which may be instituted in respect of the offence for which he or she is arrested. lt is an offence for a person to refuse to allow themselves to be photographed pursuant to this provision. (Criminal Justice Act 2006, s.12) No video recording of an interview may be used to make a photograph of a person except with the consent of that person (Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997, Regulation 17) |
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Lavery v Member in Charge [1999] 2 IR 560
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The right to access to legal advice does not extend to the right to have a solicitor present during interview.
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People (DPP) v Darcy (CCA July 29 1997)
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It will not necessarily breach the constitutional right of the accused (or the regulations) if questioning commences before the solicitor arrives.
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Fingerprinting of persons in detention
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Persons detained under the following provisions may be fingerprinted, and to obstruct or impede a garda exercising this power is an offence:
• Criminal Justice Act 1984, s.4 (see s.6(1) of that Act) • Offences Against the State Act 1939, s.30 (see s.30(6) of that Act) • Criminal Justice (Drug Trafficking) Act 1996, s.2 (see s.5 of that Act) • Criminal Justice Act 2007, s.50 (see s.52 of that Act) As with the provisions pertaining to photographing, a person detained under a relevant statutory provision may have his fingerprints taken, either by consent, or in the absence of such consent on the authority of an lnspector or higher ranking officer. |
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Use of force in taking fingerprints
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Under the provisions of section 6A of the Criminal Justice Act 1984 (as inserted by section 48 of the Criminal Justice Act 2007) if a person fails or
refuses to allow his photograph or fingerprints to be taken this can be done by the use of such force as the member taking the prints or photograph reasonably considers to be necessary. If prints or photographs are taken by force this must by authorised by a member of at least Superintendent rank and in the presence of a member of at least Inspector rank. |
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Destruction of fingerprint records
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Previously, there was an obligation on State authorities to destroy fingerprints and photographs taken pursuant to section 6 of the Criminal Justice Act 1984 within specified periods if proceedings were not instituted or convictions obtained. Section 49 of the Criminal Justice Act 2007 substitutes a new section 8 into the Criminal Justice Act 1984 whereby there is now no automatic duty to destroy prints or photographs. Instead, a person can after 12 months make a request to the Garda Commissioner for the destruction or limit
of use of prints and photographs held by Gardai. A refusal of such request must be reasoned and can be appealed to the District Court. Note that the previous obligation to destroy and the new obligation to consider a request to destroy do not apply to prints or photographs taken by consent rather than pursuant to section 6 of the Criminal Justice Act 1984. |
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The People (Director of Public Prosecutions) v. Cleary [2005] 2 I.R. 189
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Authority that a consent to taking fingerprints must be evidenced in writing.
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Criminal Justice (Forensic Evidence) Act 1990:
The taking of bodily samples from persons in detention |
This is governed by the Criminal Justice (Forensic Evidence) Act 1990 as amended by the Criminal Justice Acts 2006 and 2007.
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