A member of the Garda Siochana has the powers and duties of a peace officer. These are in addition to the powers and duties conferred by the common law on individuals. Although members of an Garda Siochana exercise many of the powers that all members of the society can exercise, they have special responsibilities and additional privileges and powers as peace officers and as conferred by statutes.
The prevention, detection of crime and prostitution has been a central part of the role of an Garda Siochana. The rights of investigation, prevention and detection of crime are not exclusively vested in the Garda Siochana. In theory members of the public can take certain steps provided they do not involve breach of civil or criminal law. However, in modern times, Garda Siochana have been empowered with a great deal of statutory power which is not available at common law to any other persons.
At common law, a citizen could arrest a person with a warrant whom he reasonably suspect to be in the act of committing a felony (now an arrestable offence). This distinction is repeated in new terms in the modern statute. Where an arrestable offence (more serious) is being committed, a citizen may arrest without warrant anyone who with reasonable cause is suspected to be guilty of the offence. There are conditions and the person must be delivered to an Garda Siochana. It is usually inadvisable to attempt to make a common law / citizen’s arrest. If the conditions are breached the person undertaking arrest may be liable to pay damages to the arrested person. These privileges are used by private security personnel.
Members of the Garda Siochana have much wider privileges and powers. They have numerous powers which have been conferred by statute. They may lawfully arrest in a much wider set of circumstances, with little risk of liability, provided they exercise their powers in good faith.
Many cases indicate that there is a common law power for members of an Garda Siochana to stop persons and ask questions randomly for the purpose of investigation of crime. The Criminal Law Act 1997 provided modern powers of arrest by members of an Garda Siochana.
Members of the Garda Siochana can use reasonable force to effect arrest. The Non-Fatal Offences against the Person Act allows a member of an Garda Siochana to use as much force as is reasonable in the circumstances in order to effect a lawful arrest. The extent of this power is unclear. . The use of force must be proportionate as between the risk of lives, gravity of offence etc. In very exceptional and extreme cases, this may justify the use of lethal force.
Traditionally, no power of detention for the purpose of investigation existed. In common law, the purpose of detention was to secure a person’s attendance before a judge / magistrate to be charged with a criminal offence. It might thereafter be refused bail, but the detention was not for the purpose of investigation.
The Offences against State Act 1939 provided for detention for questioning without charge, for periods of 24, and ultimately 48 hours. This power was used extensively in the last 50 years , being used commonly in relation to both subversive and non-subversive crime.
The Criminal Justice Act 1984 provided a general power of arrest and detention for the purpose of an investigation. This legislation has been supplemented with newer legislation allowing for longer detention in the case of certain other serious crimes. See generally the sections on Criminal Procedure.
Greatly enhanced powers have been given to the Gardai in recent years allowing the fingerprinting, DNA, taking of hair and other intimate samples, photographing etc. These powers have been enhanced significantly in relation to drug trafficking, firearms and subversive gangs.
A range of statutes grant powers to the Garda Siochana to search and seize things for the purpose of investigation, and ultimately for use as evidence. The powers of searching, et cetera, are conferred by each relevant statute. There are general powers and numerous offence specific powers. The common law did not grant any general authority to enter property for the purpose of investigation. A warrant was necessary.
Wide statutory powers of search and seizure now exist. In most cases, the powers are exercised on the basis of reasonable suspicion on the part of the member. In the case of many premises and invariably, a dwelling house, a judicial warrant by a judge is required to authorise searching, in view of the constitutional protection of the inviolability of the dwelling house. There are limited exceptions which cover certain emergency cases.
The Garda Siochana maintains an internal Garda Siochana code in relation to the functions of Garda Siochana. It is not published. It obliges members of the force to contribute generally towards gathering of criminal intelligence, records, information on suspected criminals and associates.
There are various special services and technical services within the Garda Siochana which are available to the Gardai in general. These include specialist sections on fingerprints, ballistics sub aqua, DNA photography and surveillance.
Members of an Garda Siochana are obliged to act in relation to offences which they witness. Offences reported must be investigated and if appropriate, the matter presented for prosecution to the DPP. Members of the Garda Siochana have a special responsibility in relation to the maintenance of public order. This is also described in older terms as a “breach of the peace.”
Breach of the peace is an offence at common law and encompassed assault, fighting, affray, and violent attacks. The use threatening words, may lead to an apprehension of a breach of the peace, but is not a breach in itself. Unlawful conduct, which is violent and lacks a physical manifestation, would not generally be a breach of the peace. Some related common law offences have been replaced by public order legislation in similar but more modern terms.
A member of an Garda Siochana member may arrest a person whom he sees breaching the peace or who is conducting himself in a manner such that he reasonably apprehends a breach of the peace. The power of arrest ceases once the breach has terminated, unless the Garda is in pursuit of the offender or reasonably apprehends a fresh breach of the peace. The public order legislation provides a power of arrest without warrant in similar terms.
The Garda’s duty to preserve the peace implies rights and obligations to take steps to prevent a breach of the peace. At common law, peace officers could take steps to prevent apprehended breach of the peace before they occur. Steps could be taken to prevent assemblies where there is a real possibility of a breach of the peace. If it appears that at common law, a member of the Garda Siochana may enter private property to restrain a breach of the peace or where he believes that a breach of the peace is imminent. There may be questions regarding the Constitutionality and continued existence of these common law powers.
The Gardai may suppress a riot or disperse an unlawful assembly. They may remove a threatened reach of the peace. The degree of force must be proportionate to the circumstances. If the Gardai exceed their powers in suppressing a riot, they may be criminally liable and liable in civil law (for damages).
In addition to common law offences, the Gardai have a range of statutory powers under public order legislation. They have powers to give directions to persons engaging in threatening or abusive language, disorderly conduct, disturbing or threatening the peace, causing obstructions, loitering or otherwise acting so as to give reasonable apprehension for the safety of others, or being intoxicated to such an extent as to give rise to a reasonable apprehension that they may endanger themselves or another. It is an offence to fail to comply with certain directions by a member.
The Offences against the State Act allowed the Gardai to put questions where failure to respond is an offence. It created statutory powers to require persons to give his names and address and certain information regarding the commission of certain terrorist-type offences. Other modern legislation has extended this power generally so that in relation to many serious offences the right to silence has been modified to some extent.
The Gardai have been conferred with powers in a wide range of areas that do relate to safety, security or more serious crimes. Many areas of regulation such as roads traffic are enforced by am Garda Siochana.
There has been a trend in recent years for certain functions, which were formerly carried out by an Garda Siochana to be carried out by external agencies. For example, the former licensing of taxis, have been moved from an Garda Siochana to independent agencies. Gardai assists many departments and agencies in the exercise of their functions. In particular, the gardai have special functions in relation to execution of warrants on behalf of other agencies.