Arrest

Nature of Arrest

An arrest means restraint or apprehension of restrained, coupled with communication that the person has been arrested. The person must be informed clearly of the grounds of arrest unless it is apparent from the circumstances.

Legislation provides numerous powers of arrest without warrant, generally reserved to members of an Garda Síochána only. There is a general power of arrest in respect of more serious offences subject to imprisonment for five years and upwards.

An arrest interferes with the constitutional right of liberty. It requires strict justification under the law. This principle is reflected both in the Irish Constitution and in the European Convention on Human Rights.

If a person is not lawfully arrested, then he may be entitled to damages for false imprisonment against an Garda Síochána and State. A confession given during a period of unlawful detention is likely to be inadmissible, other than in exceptional, circumstances as taken in breach of constitutional rights.

Generally, an arrest is founded on reasonable suspicion that the person concerned has or is about to commit a crime. The relevant authority will be set out in the statute. It is essential that the basis of arrest be lawfully founded.

Suspicion must be held in good faith and cannot be irrational. There must be objective circumstances justifying the suspicion. There must be a genuine suspicion that has an objective foundation.

Arrest to Secure Court Attendance

Traditionally at common law, the sole purpose of arrest was to charge the person with an offence and secure their attendance at court. The requirements regarding appearance before the District Court also apply to arrestable offences generally, but not to arrest for questioning.

The arrested person must be brought before the District Judge as soon as possible. After hearing the evidence, the Judge or formerly a Peace Commissioner decides if the person must be released or remanded in custody or on bail.

Detention for the purpose of investigation and questioning was not recognized as common law. A person may not be detained for questioning other than in accordance with one of the permitted statutory procedures, and in such cases only in accordance with the terms of one of the permitted procedures. Apart from these procedures, a person may not be arrested for questioning.

General Power of Arrest

An arrestable offence is one carrying a maximum sentence of at least five years. Any person may arrest a person whom he has reasonable cause to suspect is in the act of committing an arrestable offence. Where an arrestable offence has in fact been committed, the person may arrest without a warrant a person whom he has reasonable cause to suspect that he is guilty of an arrestable offence.

An arrest other than by an Garda may only be made where the person effecting it suspects with reasonable cause, that the person would otherwise attempt to avoid arrest by a Garda Síochána. A person arrested by someone other than Garda Síochána must be transferred into the custody of the Garda Síochána as early as possible.

These powers apply to any member of the public, including, for example, private security personnel. It is essential that the strict terms of the power are observed. If the offence is not, in fact, being committed or has not been committed, or if the person is not handed over to the Garda Síochána then the person concerned, or his employer may be liable to pay damages for false imprisonment.

Members of an  Garda Síochána have wider powers for arrest. A member of an Garda Síochána who with reasonable cause suspects that an arrestable offence is being committed or has been committed may arrest without warrant anyone whom with reasonable cause he suspects is committing or has committed the offence. Unlike the power for others, an offence need not have been committed in fact.

Some Other Powers of Arrest

There is a power to arrest a person for breach of the peace. A breach of the peace is where harm is done or likely to be done to a person or to his property in his presence or if a person is in fear of being harmed through an assault riotous assembly or disturbance.

A person may be arrested for breach of the peace or where there is a reasonable apprehension of a breach of the peace. A member of an Garda Síochána or any person may lawfully arrest a person in order to prevent an imminent apprehended breach of the peace.

There are numerous individual offences where particular statutory provisions apply. The power of arrest for so-called drunk driving under the Road Traffic Act is a good example. The purpose of the arrest is to administer blood or urine tests rather than to bring a person before Court for the initiation of a prosecution. If the prosecution is initiated, it would be more likely initiated by summons thereafter.

Houses and Arrest

There is a Constitutional right of inviolability of the dwelling house. This requires a higher standard of legality in respect of search and arrest in a person’s dwelling. Generally, any entry onto a dwelling house without consent requires a valid warrant, exceptional circumstances of urgency and perhaps, some limited specific legal authority.

Members of an Garda Síochána may enter premises including a dwelling house forcibly if necessary, in order to make an arrest on foot of a warrant or committal order. The person suspected must be in the dwelling house concerned or with reasonable cause suspected to be there.

In the case of a third party dwelling house, an arrest without a warrant may not be made for such purposes without  the consent of the owner or occupier unless:

• the Garda has observed the person entering the premises or within the curtilage;
• there is reasonable cause to suspect that before a warrant can be obtained the person will abscond;
• he has reasonable cause for suspecting that before a warrant can be obtained the person may commit an arrestable offence;
• the person ordinarily resides in the dwelling.

The above powers are available only to a  member of an Garda Síochána.

Arrest for Remand and Bail

The following does not apply to persons arrested for the purpose of questioning and investigation in accordance with one of the relevant powers in that regard.

A person arrested must be brought before a Judge of the District Court as soon as possible whether arrested with or without a warrant. If a person is arrested after 5 pm. who having been arrested is charged after that hour, it is sufficient that he is brought before the District Court not later than noon on the following day.

If the accused is remanded on bail and enters bail immediately, the case is remitted to the next sitting of the District Court. Otherwise, it is remitted to a sitting of the District Court to be held within a certain  period.

Persons arrested for certain offences designated under the Offence against State Act may be brought directly to the Special Criminal Court.

Alternative Commencement

A prosecution may be initiated, and a person may be brought before the court by summons. In the case of minor offences, a summons requires the person to appear to answer the charge on the relevant date. A summons will generally be the most appropriate mechanism in the case of a summary offence as it is less intrusive on the liberty of the citizen.

Where a person is charged with an indictable offence, the District Court may issue a warrant for arrest instead of a summons. An application for a warrant is made under court rules. Where a person has been summoned but fails to appear, a warrant may be issued for his arrest provided it is proved that he has been served with the summons, he is shown to be avoiding service or is about to abscond. More commonly if a person does not appear to answer a summons, the Judge may simply hear the case in his absence. He may adjourn the case.