The older general provision for arrest for the purpose of questioning was the Offences against the State Act, 1939. Although commonly used, it was only legitimately used in respect of scheduled terrorist type offences. It allowed questioning for up to 24 hours which could be extended.
The notorious Emergency Powers Act 1976, the controversy over which caused the President to resign, permitted persons to be detained for up to seven days where they were suspected of certain terrorist type offences. However, the legislation was for one year and was not renewed.
The Criminal Justice Act 1984 is now the general provision allowing for detention for the purpose of questioning. It applies only to arrestable offences i.e. those with a maximum penalty of at least five years. A person may be detained for up to 24 hours.
Generally, breach of the custody regulations does not render the arrest and detention unlawful nor render a statement given inadmissible.
Once a person is arrested, he must be brought to a Garda station as soon as possible. Provision is made for a person who requires a medical examination. There is a provision for a suspension of the relevant period.
If a member of an Garda Síochána arrests a person without warrant and suspects him with reasonable cause to have committed an arrestable offence the person may be taken to a Garda Síochána or if already there detained there for the relevant period. The same provision applies where a person is arrested pursuant to a warrant. The member of an Garda Síochána in charge of the station to which he is taken or where he is arrested must have reasonable grounds for believing that detention is necessary for the proper investigation of the offence.
The custody regulations provide for procedures for detention for the purpose of investigation. Failure to comply with the custody regulations does not usually make the arrest and detention illegal. The evidence will be generally admissible unless it prejudices the fairness of the trial.
The initial arrest must be valid. The member of the Garda Síochána must have the relevant reasonable suspicion and the detention must be for the purpose of investigating the offence.
A person arrested under the 1984 Act (the general power of detention for questioning ) may be detained initially for six hours. A member of an Garda Síochána not below the rank of superintendent may direct detention for a further six hours if there are reasonable grounds for believing that it is necessary for the proper investigation of the offence. This may be further extended for a further 12 hours if there are reasonable grounds for believing it is necessary for the proper investigation of the offence.
Charge or Release
Once a member of an Garda Síochána has sufficient evidence to charge the detained person, they must do so immediately, unless he is suspected of another offence with reasonable cause.
If there are no longer reasonable grounds for suspecting the detained person of having committed the offence, he must be released unless detention is otherwise authorised. If there are no longer grounds for believing that the detention is necessary for the relevant purpose he must be released.
A person below the age of 12 years may not be detained. A person above this age and under 18 years may be detained if there are reasonable grounds for believing he is not under 12 years. Generally, a child must be questioned in the presence of a parent or a guardian or another nominated adult. Certain exceptions are permissible.
Where a person has been detained and released under the general 1984 Act provisions, he may not be rearrested for questioning in relation to the same offence or another offence with which he is suspected or ought reasonably to have been suspected the first time. If a person has been detained for questioning, he may be rearrested for the purpose of charge/restriction. In this case, the charge must be made immediately.
There is an exception n the case of an arrest on the authority of a warrant granted on the basis of further information about the person’s participation in the crime or where questioning on the previous case would not be in the interest of the proper investigation of the offence.
Rights of Arrested Person
The custody regulations require the person detained to be informed of his right to consult a solicitor. If a person asks for a solicitor, he shall not be required to make a written statement until reasonable time for the attendance of a solicitor has elapsed.
A caution must be administered before questions are asked and answered. Generally, the person detained enjoys a right of silence except to the extent where the right has been modified under specific legislation
The Gardai must respect the personal rights of persons in custody and have shall regard to those person’s special needs such as under a physical or mental disability. A custody record must be maintained.
The regulations govern interviews. They must be conducted fairly. Not more than two members of an Garda Síochána shall question a person at any one time. Not more than four persons may be present. Records must be kept of interviews including the times and any breaks. If the interview has lasted for four hours, it must be adjourned or terminated for a reasonable time.
Generally a member of an Garda Siochana may seize without warrant property which is in the possession or custody of a person if it is necessary to avoid the destruction of evidence in support of the charge on which the arrest is made or another charge then in contemplation or it is reasonably believed to be stolen property unlawfully in that person’s custody.
Evidence seized may be retained for use at the trial against the person concerned or any other person under a criminal charge in which the property is to be used as evidence and support.
The custody regulations provide that the person conducting the search must ensure that the person searches understands the reason for the search. Detained persons may be photographed, searched, fingerprinted and tested. The taking of the photographs, fingerprints, and palm prints requires the consent of superior officers.
Skin swabs may be taken as may hair samples. Strip searching would be allowed only for a controlled drug. See our separate chapter in relation to forensic tests which a person may be obliged to undergo in detention. Searches must be reasonable and proportionate and respect the dignity of the person who is searched.
The Gardai have power to photograph persons arrested for the purpose of identifying them in the context of the offence for which they are detained. There is provision for the destruction of records if they are not ultimately required.
If a person who is being prosecuted for an indictable offence even if given the Probation Act, fingerprints may be taken within seven days. If this cannot be practically done, he may be ordered to attend at a Garda Síochána for the purpose of having such prints or photographs taken. Failure to comply is an offence.