Detention for Questioning I

Garda Enquiries and Powers

Gardai have powers to make reasonable enquiries of members of the public.  However,  in order to stop persons and ask questions, it is necessary that there is statutory authority. There exists a wide variety of legislation which allows Gardai to stop, ask questions, and search.   Generally, there must be a reasonable suspicion of, for example, possession of stolen property, possession of drugs, breach of road traffic legislation, et cetera.

The relevant legislation specifies the requisite suspicion which  the member of an Garda Síochána must have.  Gardai have powers to search suspects,  in order to take custody of dangerous weapons or other things that may be of evidentiary value.  The also may seize things at the place of arrest, in the custody of the person, reasonably believed to be evidence in support of a criminal charge or property unlawfully held.

Search Warrant

Generally, the Gardai may only enter private with lawful search warrant or pursuant to a statutory or common law right to enter. The Constitutional protection of the dwelling house requires in most cases, that a specific warrant is required to enter. There are limited exceptions where this is necessary to safeguard lives or prevent injury to  persons.

A search warrant is a legal authority authorising persons identified, usually members of an Garda Siochana to enter property for the purpose of seizing evidence.  The relevant legislation must specify the basis upon which a warrant may be entered.  An application for a warrant is generally made to a District judge or Pease Commissioner.

The applicant for the warrant, usually a Garda  must give evidence of their reasonable suspicion as the basis for issue of the warrant.  The District judge or Peace Commissioner must be satisfied on reasonable grounds that a basis exists for the issue of the  warrant.

Things  which may be an evidence of the offence may be seized. The class of things may be specified. The terms of the warrant must strictly be complied with.

Arrest

There is a Constitutional right to liberty.  A person may not be deprived of his  liberty other than in accordance with law.  In this context, law in effect means basic principles of human rights.  Legislation which is inconsistent with basic constitutional rights is invalid.

Reasonable force may be used to resist an unlawful arrest.  Evidence obtained as a result of an unlawful arrest may be excluded.

A person may be arrested for the purpose of charge pursuant to a warrant.  A person may be arrested without warrant where there is reasonable cause to suspect that he is committing or has committed an arrestable offence.  A Garda may arrest a person where the commission of an arrestable offence is suspected.

Any person may arrest another where  an arrestable offence is being or has in fact being completed and  that person suspects with reasonable cause that this suspect is trying to avoid or would otherwise attempt to avoid arrest by a An Gardai.  Person must be transferred into the custody of the Gardai as soon as practicable.

An arrestable offence  is one for which may be punished for imprisonment for five  years or a more severe penalty.  This includes the most serious crimes and offences.  A person arrested without a warrant is  entitled to be told the grounds on which his is detained in ordinary language unless this is apparent from the circumstances, unless this is rendered impossible circumstances such as his resisting arrest or moving away.

A warrant for arrest may be issued by a District Court judge in exercise of his  discretion based on a sworn information by a member of An Garda Síochána.

Detention  for Questioning

A person may be arrested, primarily  for the purpose of being charged with an offence and being brought before a court.  Detention for the purpose of questioning is permitted  on certain conditions and in respect of certain offences.  Contrary to popular opinion, it is not the norm or default position.

Detention for up to 24 hours is allowed under the Criminal Justice Act 1984, 72 hours under Section 30 of Offences against State Act and up to 7 days in respect of drug trafficking  certain murders and serious offences under 2006-07 Criminal Justice Acts.

In the absence of this special legislation applying,  arrest for questioning is not permissible. Detention and arrest are not permissible other than for the purpose of bringing a person before a court.

Under the “general” Criminal Justice 1984 power, a person may be arrested for questioning in connection with an arrestable offence i.e., more serious-type offences carrying punishment of 5 years or more.  He may be arrested by a member of An Garda Síochána, without warrant and   brought to a Garda Station without warrant.

The member in charge must have reasonable grounds for believing that detention is necessary for the purpose of investigation of the offence.  Detention is initially for a period of 6 hours with the consent of the Sergeant in charge. This  can be extended by  for a further  6 hours and a further detention  12 hours with the consent of a member of the Garda of the rank of chief superintendent of higher. There may be certain rest periods  between midnight and 8 p.m. so that the total period of detention may be last for up to of 32 hours.

Exceptional Detention Powers

There are other bases for longer detention for  drug trafficking and certain scheduled or terrorist-type offence under the Offences against State Act. The latter Act, although designed to counter terrorist-type offences was used extensively in the past in respect of many subversive and non-subversive offences.

Detention for up to 7 days is permitted under this latter legislation in relation to murder using a firearm, explosives offences, capital murder, (members of Gardai and certain others) and possession of firearms.  In these cases, an initial period of detention is allowed followed by the possibility of extensions sanctioned by senior Garda officers.

Further extensions are allowed or further three and two days respectively where the court is satisfied that it is necessary for the proper conduct of the investigation of the offence and that the  investigation is being conducted diligently and expeditiously.

Judges Rules

The so-called “Judges’ Rules” apply to questioning caution and detention.  Where a police officer has made up his mind to charge a person, he  must caution the person concerned,  before asking further questions.  Persons in custody should not be questioned without the caution being administered.

If a  person wishes  to volunteer a statement, the caution must first be administered.  The caution asks whether the person wishes to respond.  It should say that the person is not obliged to give evidence but if they do so, then it will be taken then and may be given in evidence against them.  A statement given before there is time to render a caution is not inadmissible.

A  person making a voluntary statement should not be cross-examined by the investigator  or no question should be put other than for the purpose of removing ambiguity.  The statement should be taken in writing and signed where possible,  after the person has read it and they have  been invited to make any corrections

Content of Judges Rules

• When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained.
• Whenever a police officer has made up his mind to charge a person with a crime, he should first caution such person before asking him any questions, or any further questions as the case may be.
•  Persons in custody should not be questioned without the usual caution being first administered. The caution should be administered as soon as an officer knew or ought to have appreciated that the suspect was likely to be on the threshold of admitting some involvement in a crime as failure to do so violates the requirements of basic fairness. This case demonstrates that in certain situations it may be necessary to caution earlier than is outlined in Rule 2 of the Judges’ Rules.
• If the prisoner wishes to volunteer any statement, the usual caution should be administered. It is desirable that the last two words of such caution should be omitted, and that the caution should end with the words ‘be given in evidence’.
• The caution to be administered to a prisoner, when he is formally charged should, therefore, be in the following words: ‘Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence’. Care should be taken to avoid the suggestion that his answer can only be used in evidence against him, as this may prevent an innocent person making a statement which might assist to clear him of the charge.
•  A statement made by a prisoner before there is time to caution him is not rendered inadmissible in evidence merely because no caution has been given, but in such a case he should be cautioned as soon as possible.
•  A prisoner making a voluntary statement must not be cross –examined, and no questions should be put to him about it except for the purpose of removing ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to  clear up the point.
•  When two or more persons are charged with the same offence and their statements are taken separately, the police should not read these statements to the other persons charged, but each of such persons should be given by the police a copy of such statements and nothing should be said or done by the police to invite a reply. If the person charged desires to make a statement in reply the usual caution should be administered.
•  Any statement in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish

The Judge’s Rules are not rules of law.  Statements made in breach of the rules may be admitted at the judge’s discretion.